The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this pro se prisoner civil rights action are (1) Defendants' motion for summary judgment (Dkt. No. 43), and (2) United States Magistrate Judge David E. Peebles's Report-Recommendation recommending that Defendants' motion for summary judgment be granted in part and denied in part (Dkt. No. 44). Neither party filed any Objections to the Report-Recommendation. For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Defendants' motion is granted in part and denied in part.
Plaintiff filed his Complaint in this action on December 11, 2006. (Dkt. No. 1.) Having originally named the corrections officers involved as "John Doe" Defendants, on June 4, 2007, Plaintiff was permitted to amend his Complaint to name Defendants, who are now identified as Lieutenant Whitmore, Sergeant R. Hawes, Corrections Officers Dzwonkas, Hall and Anna, Commissioner Goord, and Marcy Superintendent Lape (all of whom are sued in their individual and official capacities). (Dkt. No. 14.) Generally, in his Amended Complaint, Plaintiff alleges that Defendants violated his constitutional rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution by (1) subjecting him to excessive use of force, (2) denying him medical treatment for the serious injuries sustained as result of the assault, (3) denying him due process at a disciplinary proceeding, (4) retaliating against him for pursuing an appeal of his grievance, and (5) conspiring to retaliate against him and cover up their unconstitutional conduct. (Dkt. No. 15.) In addition, Plaintiff advances pendent state law claims for assault and battery. (Id.)
On November 12, 2008, Defendants filed a motion for summary judgment, arguing that they are entitled to summary judgment because, among other things, Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 43.) On January 27, 2009, the deadline for Plaintiff's submission of papers in opposition to Defendants' motion passed without Plaintiff filing any responsive papers.
On September 1, 2009, Magistrate Peebles issued a Report-Recommendation recommending that Defendants' motions be granted in part and denied in part. (Dkt. No. 44.) More specifically, Magistrate Judge Peebles recommended as follows: (1) that Plaintiff's claims against Defendants Goord and Lape be dismissed for lack of personal involvement; (2) that Plaintiff's Fourteenth Amendment due process claim "be dismissed on the grounds that he has failed to make a threshold showing that an actual liberty interest was implicated by his sixty-nine days of confinement in the facility [Special Housing Unit], and further because, even presuming the deprivation of such a liberty interest, the record establishes that [P]laintiff was afforded all of the process to which he was constitutionally entitled"; and (3) that "[P]laintiff's claims for excessive use of force, denial of medical treatment, retaliation and conspiracy be left intact despite his failure to exhaust his administrative remedies, inasmuch as material questions of fact exist as to whether the alleged threats against him by corrections officers effectively rendered those remedies unavailable and/or should estop [D]efendants from relying on such defense." (Dkt. No. 44.)
Further familiarity with the grounds of Magistrate Judge Peebles's Report-Recommendation is assumed in this Decision and Order.
II. APPLICABLE LEGAL STANDARDS
A. Legal Standard Governing Motion for Summary Judgment
Magistrate Judge Peebles correctly recited the legal standard governing a motion for summary judgment, including the standard governing such motions that are not properly opposed by pro se litigants. (Dkt. No. 159, at 13-14.) As a result, that standard is incorporated by reference herein.
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 conducting ...