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Excell v. Woods

September 29, 2009

MORTIMER EXCELL, PLAINTIFF,
v.
ROBERT K. WOODS, SUPT., UPSTATE C.F.; N. BEZIO, DEP. SUPT., UPSTATE C.F.; GLENN S. GOORD, COMM'R, DOCS; LUCIEN J. LECLAIRE, JR., DEP. COMM'R, DOCS; DONNIE WOOD, C.O., UPSTATE C.F.; BRIAN LEWIS, C.O., UPSTATE C.F.; TIMOTHY RAMSDELL, C.O., UPSTATE C.F.; JOHN MOORE, CORR. SUPERVISOR, UPSTATE C.F.; KENNETH MCLAUGHLIN, DIR. OF OPS., INSPECTOR GEN.; D. QUINN, CAPTAIN, UPSTATE C.F.; R.N. MARIA TRAVERS, NURSE, UPSTATE C.F.; GARY STEINBERG, C.O., AUBURN C.F.; DR. LESTER WRIGHT, ASSOC. COMM'R, DOCS; BRAD SMITH, C.O., AUBURN C.F.; JOSEPH BELLINER, DEP. SUPT., AUBURN C.F.; JEFFREY CLAFFLIN, C.O., AUBURN C.F.; JOHN BURGE, SUPT., AUBURN C.F.; JOSEPH WOLCZYK, HEARING OFFICER, AUBURN C.F.; DONALD HESS, C.O., AUBURN C.F.; D. SELSKY, DIR. OF SPECIAL HOUSING, DOCS; GORDON SIMONS, C.O., AUBURN C.F., BRIAN FISCHER; COMM'R, DOCS; RICHARD ROY, INSPECTOR GEN.; ALAN CROCE, CHAIRMAN, COMM'N OF CORR., AND COMM'R, DIV. OF PAROLE; DANIEL STEWART, CHAIRMAN, COMM'R, COMM'N OF CORR.; VERNON MANLEY, COMM'R, NYS DIV. OF PAROLE; THOMAS GRANT, COMM'R, NYS DIV. OF PAROLE; JOHN CAPACCI, NYS DIV. OF PAROLE; MARIA TIRONE, DEP. SUPT., UPSTATE C.F.; ASHLEY ALLEN, CORR. COUNSELOR, UPSTATE C.F.; LINDA A. HAYES, KBSI, UPSTATE C.F.; PATRICIA SALVAGE, AUBURN C.F.; RAYMOND HEAD, LT., AUBURN C.F.; JAMES ANCTIL, LT., UPSTATE C.F.; R.N. NANCY SMITH, NURSE ADMINISTRATOR, UPSTATE C.F.; LABETZ, CORRECTIONAL SUPERVISOR, AUBURN C.F.; WILLIAM DEVITO, C.O., AUBURN C.F.; J. SOURWINE, C.O., AUBURN C.F.; MICHAEL BRAY, C.O., AUBURN C.F.; KEVIN PREMO, C.O., UPSTATE C.F.; DARRIN CORRIGEUX, C.O., UPSTATE C.F.; SHEILA SAUVE, C.O., UPSTATE C.F.; AND M. MACKDONAL, C.O., UPSTATE C.F., 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 Mortimer Excell ("Plaintiff") against forty-three employees of several New York State departments and/or agencies ("Defendants") pursuant to 42 U.S.C. § 1983 are the following: (1) a motion, filed by thirty-six of the Defendants, to dismiss part of Plaintiff's Second Amended and Supplemental Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6); (2) United States Magistrate Judge George H. Lowe's Report-Recommendation recommending that the motion be granted in part and denied in part; (3) Plaintiff's Objections to those portions of the Report-Recommendation recommending dismissal; and (4) Plaintiff's fourth motion for the appointment of counsel. (Dkt. Nos. 67, 84, 87, 93.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendants' motion is granted in part and denied in part; Plaintiff's Second Amended and Supplemental Complaint is dismissed in part, as detailed in the "Ordered" Clauses of this Decision and Order; and Plaintiff's fourth motion for the appointment of counsel is denied.

I. RELEVANT BACKGROUND

A. Plaintiff's Pleadings in This Action

On March 23, 2007, Plaintiff filed his original Complaint in this action pursuant to 42 U.S.C. § 1983, asserting numerous claims arising out of his confinement at Auburn and Upstate Correctional Facilities between approximately August 9, 2005, and March 16, 2007 (the date of the Complaint). (Dkt. No. 1, at 36.) On April 18, 2007, the Court required Plaintiff to file an Amended Complaint. (Dkt. No. 6.) On May 17, 2007, Plaintiff filed an Amended and Supplemental Complaint asserting similar claims arising out of his confinement at Auburn Correctional Facility between approximately May 5, 2005, and May 14, 2007 (the date of the Amended and Supplemental Complaint). (Dkt. No. 10.) On July 3, 2007, with leave of the Court, Plaintiff filed a SecondAmended and Supplemental Complaint asserting similar claims arising out of his confinement at Auburn and Upstate Correctional Facilities between approximately June 17, 2005, and July 3, 2007 (the date of the Second Amended and Supplemental Complaint). (Dkt. No. 17.)

Generally, in his Second Amended and Supplemental Complaint, Plaintiff alleges that, on at least five separate occasions, between approximately June 17, 2005, and July 3, 2007, correctional officers at Auburn and Upstate Correctional Facilities harassed him based on his race and religion. (See generally Dkt. No. 17.) As a result, Plaintiff brings claims arising under First, Fourth, Eighth and Fourteenth Amendments, against forty-three employees of several New York State departments and/or agencies, listed in the caption of this Decision and Order. (Id.) In his Report-Recommendation, Magistrate Judge Lowe accurately and thoroughly recites the allegations, and prayer for relief, of Plaintiff's Second Amended and Supplemental Complaint. (See Report-Recommendation at Parts I.B. and I.C.) As a result, that recitation is incorporated by reference herein.

B. Plaintiff's Related Action

In his Report-Recommendation, Magistrate Judge Lowe also accurately and thoroughly recites the allegations, claims and procedural posture of Plaintiff's Complaint in a previously filed action that is currently pending in this Court before the undersigned--Excell v. Burge, 05-CV-1231-GTS-GJD (N.D.N.Y.). (See Report-Recommendation at Part I.A.) As a result, that recitation is incorporated by reference herein. The Court would note two additional facts regarding that action's procedural posture.

First, although this fact is not expressly stated in Magistrate Judge Lowe's Report-Recommendation, Senior United States District Judge Lawrence E. Kahn granted part of Defendants' motion for summary judgment in the action of Excell v. Burge, 05-CV-1231, on September 25, 2008, dismissing with prejudice all of Plaintiff's claims against Defendant Head, and Plaintiff's First Amendment free-exercise claim against Defendants Hess, Devito, Bray, and Sourwine. See Excell v. Burge, 05-CV-1231, 2008 WL 4426647 (N.D.N.Y. Sept. 25, 2008) (Kahn, J.). Then, after being assigned the case on October 2, 2008, the undersigned denied Plaintiff's motion for reconsideration of Judge Kahn's decision and order on January 21, 2009. See Excell v. Burge, 05-CV-1231, 2008 WL 152585 (N.D.N.Y. Jan. 21, 2009) (Suddaby, J.)

Second, after Magistrate Judge Lowe issued his Report-Recommendation in this action, the undersigned scheduled trial in the action of Excell v. Burge, 05-CV-1231, for December 14, 2009, and appointed pro bono trial counsel for Plaintiff.

C. Defendants' Motion to Dismiss

On March 6, 2008, thirty-six of the forty-three Defendants in this action filed a motion to dismiss part of Plaintiff's Second Amended and Supplemental Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 67.)*fn1 In his Report-Recommendation, Magistrate Judge Lowe accurately summarizes Defendants' arguments on their motion to dismiss. (See Report-Recommendation at Part I.D.) As a result, that summary is incorporated by reference herein.

After being granted two extensions of time by Magistrate Judge Lowe to file a response to the motion, Plaintiff filed a lengthy response on June 30, 2008, and July 7, 2008. (Dkt. Nos. 74, 75.) More specifically, Plaintiff's response consisted of thirty pages of singled-spaced legal argument and affidavit testimony, as well as forty-nine pages of exhibits. (Id.) Liberally construed, the crux of Plaintiff's response is that Defendants' motion should be denied for three reasons: (1) his lengthy Second Amended and Supplemental Complaint and his declaration in response to Defendants' motion provide sufficient factual allegations for purposes of Fed. R. Civ. P. 8(a); (2) his response exhibits and his declaration in response to Defendants' motion, demonstrate genuine issues of material fact for trial; and (3) Defendants have failed to comply with Plaintiff's discovery requests. (Id.)

On March 12, 2009, Magistrate Judge Lowe issued a Report-Recommendation recommending that the motion be granted in part and denied in part. (Dkt. No. 84.) Familiarity with the specific recommendations and analysis therefor offered in Magistrate Judge Lowe's Report-Recommendation is assumed in this Decision and Order. (See Report-Recommendation at Part III.)

On March 27, 2009, Plaintiff filed his Objections to those portions of the Report-Recommendation recommending dismissal. (Dkt. No. 87.)*fn2 Liberally construed, the crux of Plaintiff's Objections argue that the undersigned should reject Magistrate Judge Lowe's Report-Recommendation for two reasons: (1) Plaintiff's lengthy Second Amended and Supplemental Complaint, his declaration in response to Defendants' motion, and his Objections to Magistrate Judge Lowe's Report-Recommendation provide sufficient factual allegations for purposes of Fed. R. Civ. P. 8(a); and (2) Plaintiff's response exhibits, his declaration in response to Defendants' motion, and his verified Objections to Magistrate Judge Lowe's Report-Recommendation demonstrate genuine issues of material fact for trial. (Id.)

D. Plaintiff's Fourth Motion for Counsel

On June 2, 2009, Plaintiff filed his fourth motion for the appointment of counsel. (Dkt. No. 93.) Plaintiff's first three such motions were filed on May 27, 2008, June 2, 2008, and March 4, 2009, and were denied on December 29, 2008, and April 7, 2009. (Dkt. Nos. 71, 72, 80, 82, 88.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review of a 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 ...


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