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Sheils v. Busse

May 6, 2009

KEVIN SHEILS, PLAINTIFF,
v.
JOHN BUSSE, SERGEANT; W. HATCH, CORRECTIONS OFFICER; T. GRIFFIN, CORRECTIONS OFFICER; AND M. SEARS, CORRECTIONS OFFICER, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this pro se prisoner civil rights action are (1) Defendants' third motion for summary judgment (Dkt. No. 67), (2) United States Magistrate Judge David R. Homer's Report-Recommendation that Defendants' motion be granted (Dkt. No. 83), and (3) Plaintiff's Objection to the Report-Recommendation (Dkt. No. 8.) For the reasons set forth below, the Report-Recommendation is accepted and Defendants' motion is granted.

I. BACKGROUND

On June 22, 2006, Plaintiff filed his Complaint in this action asserting claims against five employees of the New York State Department of Correctional Services stationed at Great Meadow Correctional Facility ("Defendants"), arising out of certain incidents that occurred on August 6, 2004.*fn1 (Dkt. No. 1.) Generally, in his Complaint, Plaintiff alleges that his rights under the First and Eighth Amendments were violated when Defendants used excessive force against him, retaliated against him for engaging in constitutionally protected activity, failed to protect him from assault, and demonstrated deliberate indifference to his serious medical needs.

On September 6, 2006, Defendants filed a motion for partial summary judgment, seeking dismissal of Plaintiff's claim of deliberate indifference to his serious medical needs. (Dkt. No. 28.) On July 31, 2007, Defendants filed a second motion for summary judgment, seeking dismissal of Plaintiff's Complaint in its entirety, based on res judicata and/or collateral estoppel. (Dkt. No. 46.)*fn2 On January 23, 2008, Plaintiff filed his opposition to Defendants' motions. (Dkt. No. 62.) On January 28, 2008, Magistrate Judge Homer filed a Report-Recommendation, recommending that Defendants' motions be granted. (Dkt. No. 62.) On February 11, 2008, Plaintiff filed his Objection to the Report-Recommendation. (Dkt. No. 64.) On March 31, 2008, Senior United States District Judge Frederick J. Scullin, Jr., issued a Memorandum Decision and Order adopting the Report-Recommendation in part. (Dkt. No. 65.) Specifically, Judge Scullin dismissed Plaintiff's excessive force claim, but did not dismiss Plaintiff's remaining claims of retaliation, failure to protect, and deliberate indifference to medical needs. (Dkt. No. 65.)

On July 2, 2008, Defendants filed (with the Court's permission) a third motion for summary judgment, seeking dismissal of all remaining claims against them because Plaintiff (1) failed to exhaust his available administrative remedies before filing this action, and (2) failed to adduce admissible record evidence establishing any of his claims against Defendants. (Dkt. No. 67.) On February 13, 2009, after being granted several deadline extensions by the Court, Plaintiff filed his opposition to Defendants' third motion for summary judgment. (Dkt. No. 80.)

On February 27, 2009, Magistrate Judge Homer issued a Report-Recommendation recommending that Defendants' third motion for summary judgment be granted in its entirety. (Dkt. No. 83.) On March 31, 2009, Plaintiff submitted his Objection to the Report-Recommendation. (Dkt. No. 87.) Familiarity with the grounds of Magistrate Judge Homer's Report-Recommendation is assumed in this Decision and Order.

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review on Objection from Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn3

When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn4 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court 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)(C).

B. Standard Governing Motion for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e)(2).

A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. As a result, "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]; see also Fed. R. Civ. P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical ...


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