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Dallio v. Hebert

July 28, 2009

THOMAS DALLIO, PLAINTIFF,
v.
C.O. JERRY HEBERT; C.O. SCOTT SANTAMORE; C.O. HANK HERRMANN; C.O. SHEILA SUAVE; C.O. CHARLES SMITH; C.O. ANDREW STREETER, C.O. JUDY WARRINER; C.O. RUYCE CURBINE; SGT. DANIEL KING; SGT. MICHELE WILSON; LT. DONALD QUINN; NURSE SUSAN RYAN; NURSE LILLIAN RILEY; NURSE KIMBERLY PERREA; LT. ROGER WRIGHT; CAPT. STEVEN RACETTE; DEPT. SUPT. JOHN DONELLI; I.G. INVESTIGATOR BENJAMIN IAZETTI; AND D.A. INVESTIGATOR DARCY CURNELL, 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 filed by Thomas Dallio ("Plaintiff") are (1) Defendants' motion for partial summary judgment (Dkt. No. 71), (2) United States Magistrate Judge George H. Lowe's Report-Recommendation recommending that Defendants' motion be granted in part and denied in part (Dkt. No. 79), (3) Defendants' Objection to the Report-Recommendation (Dkt. No. 80), and (4) Plaintiff's Objection to the Report-Recommendation. (Dkt. No. 81.) For the following reasons, the Report-Recommendation is accepted and adopted as modified below, and Defendants' motion is granted in its entirety.

I. BACKGROUND

On January 30, 2006, Plaintiff filed his Complaint in this action, asserting claims against the above-captioned nineteen (19) DOCS employees ("Defendants"). (Dkt. No. 1.) Generally, in his Complaint,Plaintiff alleges civil rights violations under the First and Eighth Amendments, including claims of excessive force, inadequate medical care, deliberate indifference, and conspiracy on the part of prison officials for filing false reports in response to his grievance claims. (Id.)

On March 10, 2008, Defendants filed a motion for partial summary judgment, arguing (1) that the Complaint should be dismissed against all Defendants in their official capacities, (2) that Plaintiff's pendent state law claims are barred by New York State Corrections Law Section 24, (3) that Defendants Ryan, Riley, and Perrea provided constitutionally sufficient medical care, (4) that Defendants Wright, Racette, Donelli, and Iazetti were not personally involved in the alleged constitutional deprivations, and (5) that the claims against Defendants Ryan, Riley, Perrea, Wright, Racette, Donelli, and Iazetti are barred by the doctrine of qualified immunity. (Dkt. No. 71, Part 17.) In support of their motion, Defendants assert the following four arguments: (1) Plaintiff failed to establish a medical indifference claim against Defendants Ryan, Riley, and Perrea; (2) Plaintiff failed to show personal involvement of several defendants; (3) Plaintiff's state law claims are barred under New York State Corrections Law Section 24; and (4) Defendants are entitled to qualified immunity. (Dkt. No. 71, Part 17.)

On April 9, 2008, Plaintiff submitted his response in opposition to Defendants' motion. (Dkt. No. 72.) In his response, Plaintiff (1) conceded that the Complaint should be dismissed against all Defendants in their official capacities, (2) conceded that the pendent state law claims must be dismissed, (3) argued that there are genuine issues of material fact that preclude summary judgment for Defendants on the issue of deliberate indifference by Defendants Riley, Ryan, and Perrea, (4) argued that Defendants Wright, Racette, Donelli, and Iazetti were personally involved, and (5) argued that Defendants Ryan, Riley, Perrea, Wright, Racette, Donelli, and Iazetti are not entitled to qualified immunity. (Id.)

On March 24, 2009, Magistrate Judge Lowe issued a Report-Recommendation recommending the dismissal of (1) Plaintiff's claims against all Defendants in their official capacities, (2) the pendent state law claims, and (3) all claims against Defendants Ryan, Riley, and Perrea. (Dkt. No. 79.) Magistrate Judge Lowe further recommended that the action be dismissed as to Defendant Curnell for failure to effect service in accordance with F.R.C.P. Rule 4(m). (Id.) Finally, Magistrate Judge Lowe recommended that the claims against all other Defendants in their individual capacities proceed to trial. (Id.) Familiarity with the grounds of Magistrate Judge Lowe's Report-Recommendation is assumed in this Decision and Order.

On April 8, 2009, both Plaintiff and Defendants filed their Objections to the Report-Recommendation. (Dkt. Nos. 80, 81.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review

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).*fn1

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).*fn2 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 and Motion to Dismiss

Magistrate Judge Lowe correctly recited the legal standard governing a motion for summary judgment as well as a motion to dismiss for failure to state a claim. (Dkt. No. 79, at 6- 18.) As a result, these standards ...


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