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Bennett v. Falcone

March 24, 2009

DONALD MACK BENNETT, PLAINTIFF,
v.
OFFICER FALCONE #105, OFFICER BUONO OF NEW ROCHELLE POLICE DEPT., DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

ORDER PARTIALLY ADOPTING REPORT & RECOMMENDATION

Donald Mack Bennett ("Plaintiff"), proceeding pro se, brought this Action against Officer Buono ("Buono") and Officer Falcone #105 ("Falcone") (collectively, "Defendants") of the New Rochelle Police Department ("NRPD") asserting claims, pursuant to 42 U.S.C. § 1983 ("Section 1983"), for excessive use of force and denial of medical treatment in connection with Plaintiff's arrests on February 4, 2004 and September 30, 2004. Defendants moved for summary judgment on Plaintiff's claims, and on September 26, 2008, Magistrate Judge Lisa Margaret Smith, to whom this motion was referred, recommended that the Court grant Defendants' motion. For the reasons stated herein, the Court adopts Magistrate Judge Smith's Report and Recommendation ("R&R") to the extent it is consistent with this Order, and denies in part and grants in part Defendants' motion for summary judgment.

I. Background

Plaintiff filed his Complaint with the Pro Se Clerk's Office on December 2, 2004,*fn1 alleging violations of his constitutional rights in connection with his arrest by Buono on February 4, 2004 and his arrest by Falcone on September 30, 2004. Plaintiff further alleged that Thomas Chanpalilli ("Chanpalilli"), a store owner, wrote a false claim against him in connection with his September 30, 2004 arrest. On February 2, 2005, then-Chief Judge Michael B. Mukasey, to whom this case was originally assigned,*fn2 issued an Order of Partial Dismissal, dismissing the Complaint as to Chanpalilli and dismissing Plaintiff's claims asserting criminal charges against Defendants. (Dkt. No. 3.) Defendants filed a motion to dismiss, which was denied (Dkt. No. 24), and then filed their Answer on March 28, 2007 (Dkt. No. 25). On June 20, 2008, Defendants filed the instant motion. (Dkt. No. 44.)

This case was referred to Magistrate Judge Smith for review pursuant to 28 U.S.C. § 636(b) on May 7, 2007.*fn3 On March 20, 2008, Magistrate Judge Smith entered an Order denying Plaintiff's motion for further responses to the interrogatories he served on Defendants on October 18, 2007. On September 26, 2008, Magistrate Judge Smith issued the R&R, concluding that this Court should grant Defendants' motion for summary judgment. Plaintiff was advised of his right to file objections to the R&R, and on November 3, 2008,*fn4 Plaintiff filed his objections to the report.*fn5

The factual background of this case is fully set forth in the R&R, and the Court assumes the Parties' familiarity therewith.*fn6

II. Discussion

A. Standard of Review

1. Review of Magistrate Judge's Report & Recommendation

A district court reviewing a report and recommendation addressing a dispositive motion "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written," Fed. R. Civ. P. 72(b)(2), and must be made "[w]ithin 10 days after being served with a copy of the recommended disposition." Id.; see also 28 U.S.C. § 636(b)(1).

Where a party submits timely objections to a report and recommendation, as Plaintiff has here, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Donahue, 2007 WL 831816, at *1. The district court "may adopt those portions of the . . . report [and recommendation] to which no 'specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." See Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008) (quoting Fed. R. Civ. P. 72(b)(2)).

With regard to a magistrate judge's decision on a non-dispositive matter, such as a discovery dispute between the parties, "[t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). The magistrate judge's findings may be considered "clearly erroneous" where, "'on the entire evidence,' the [district court] is 'left with the definite and firm conviction that a mistake has been committed.'" Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). "Pursuant to this highly deferential standard of review, magistrate[] [judges] are afforded broad discretion in resolving discovery disputes." Aurora Loan Servs. v. Posner & Assocs., P.C., 499 F. Supp. 2d 475, 477 (S.D.N.Y. 2007) (internal quotation marks omitted).

2. Motions for Summary Judgment

Summary judgment may be granted where it is shown that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must view all evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-movant's favor. See Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d Cir. 2006). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Segal v. City of New York, 459 F.3d 207, 211 (2d Cir. 2006). "Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact, the nonmoving party, in order to defeat summary judgment, must come forward with evidence that would be sufficient to support a jury verdict in his [or her] favor." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).

"A fact is material when it might affect the outcome of the suit under the governing law." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding that the materiality of the facts considered by the court will be governed by substantive law). "The motion 'will not be defeated merely . . . on the basis of conjecture or surmise.'" Goenaga, 51 F.3d at 18 (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)); see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."). At summary judgment, a court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. See Westinghouse Elec. Corp. v. N.Y. City Transit Auth.,735 F. Supp. 1205, 1212 (S.D.N.Y. 1990). A court's goal should be to "isolate and dispose of factually insupportable claims." Celotex, 477 U.S. at 323-24.

Pleadings submitted by pro se litigants are held to a lesser standard than those drafted by attorneys. See Fed. Express Corp. v. Holowecki, 128 S.Ct. 1147, 1158 (2007) ("Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties."); accord Erickson v. Pardus, 127. S.Ct. 2197, 2200 (2007) (per curiam). The Court therefore construes Plaintiff's pleadings liberally so as to interpret them to raise the strongest arguments that they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also Dimps v. Dist. Council 37, No. 01-CV-1735, 2002 WL 206992, at *2 (S.D.N.Y. Feb. 8, 2002) ("Pro se plaintiffs are entitled to a far more generous reading of their pleadings than would otherwise be afforded to one who is represented by an attorney" (internal quotation marks and alterations omitted)). This more lenient approach to construing a pro se plaintiff's pleadings does not, however, "relieve [P]laintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal ...


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