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Smith v. Greene

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 16, 2010

JULIO ISLEY SMITH, PLAINTIFF,
v.
GARY GREENE, SUPERINTENDENT; JOHN DOE, PRISON GUARD; AND JOHN DOE, 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 Julio Isley Smith ("Plaintiff") against former Great Meadow Correctional Facility Superintendent Gary Greene ("Defendant"), are (1) Defendant's motion for summary judgment (Dkt. No. 49), (2) Plaintiff's cross motion for summary judgment (Dkt. No. 54), (3) Plaintiff's affidavit in further support of his cross-motion (Dkt. No. 62),*fn1 and (4) United States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Defendant's motion be granted in part and denied in part. (Dkt. No. 64.) Neither party has submitted any Objections to the Report-Recommendation. For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; and Defendant's motion is granted in part and denied in part.

I. RELEVANT BACKGROUND

Plaintiff filed his Amended Complaint in this action on December 12, 2006. (Dkt. No. 10.) Generally, construed with the utmost of liberality, Plaintiff's Amended Complaint alleges that, between approximately February 27, 2006, and March 16, 2006, while Plaintiff was incarcerated at Great Meadow Correctional Facility in Comstock, New York ("Great Meadow C.F."), the above-captioned Defendants violated his constitutional rights. More specifically, Plaintiff alleges, inter alia, that in February 2006, he filed a formal grievance with the New York State Inspector General ("NYSIG") after witnessing an alleged beating of a fellow Muslim prisoner named Cleo Wright. Plaintiff further alleges that, as a result of filing this grievance, Defendant Greene retaliated against him, in violation of his First Amendment rights, by ordering his transfer to Auburn Correctional Facility ("Auburn") on March 16, 2006, the same day that state officials from the NYSIG's office arrived at Great Meadow C.F. to interview Plaintiff about his grievance. (See generally Dkt. No. 10 [Plf.'s Am. Compl.].) Plaintiff also alleges that the John Doe Defendants subjected him to excessive force, in violation of the Eighth Amendment.

Familiarity with the remaining factual allegations of Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

On March 27, 2009, Defendant Greene filed a motion for summary judgment seeking dismissal of all of Plaintiff's claims. (Dkt. No. 49.) Generally, in support of his motion for summary judgment, Defendant argues as follows: (1) Plaintiff's claims against Defendant are barred by the Eleventh Amendment; (2) Plaintiff has failed to establish that Defendant was personally involved in the alleged violations; and (3) Defendant is entitled to qualified immunity. (Id.)

On June 3, 2009, after an extension of time was granted by the Court, Plaintiff filed a response in opposition to Defendant's motion. (Dkt. No. 54.) In his response, Plaintiff argues as follows: (1) Plaintiff's Amended Complaint states a claim against Defendant Greene in his individual capacity, and therefore is not barred by the Eleventh Amendment; (2) Plaintiff has alleged facts plausibly suggesting that Defendant Greene was personally involved in transferring him to Auburn; and (3) Defendant Greene is not entitled to qualified immunity. (Id.) On October 5, 2009, Plaintiff submitted an affidavit in further support of his response to Defendant's motion. (Dkt. No. 62.) In his affidavit, Plaintiff states that the transfer order of March 16, 2006, contains the name of Defendant Greene as "requester" and that he can prove that this transfer was requested on the same day that the assistant to the NYSIG came to interview Plaintiff about the incident involving Cleo Wright.

On February 3, 2010, Magistrate Judge Baxter issued a Report-Recommendation recommending (1) that Plaintiff's claims against Defendant Greene in his official capacity be dismissed, (2) that Defendant Greene's motion for summary judgment be denied without prejudice in all other respects, (3) that Plaintiff be allowed sixty days from the date of the undersigned's instant Decision and Order for further discovery and, if warranted at the end of the sixty days, another thirty days to file a motion to amend his Amended Complaint, and (4) that Plaintiff's cross-motion for summary judgment be denied. (Dkt. No. 64.) Familiarity with the grounds of Magistrate Judge Baxter's Report-Recommendation is assumed in this Decision and Order.

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).*fn2 When only general objections are made 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).*fn3 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 a Motion for Summary Judgment

Magistrate Judge Baxter correctly recited the legal standard governing a motion for summary judgment. (Dkt. No. 64, at 6-7.) As a result, this standard is incorporated by reference in this Decision and Order.

III. ANALYSIS

Neither party has submitted objections to the Report-Recommendation. In addition, after carefully reviewing all of the papers in this action, including Magistrate Judge Baxter's Report-Recommendation, the Court concludes that Magistrate Judge Baxter's thorough Report-Recommendation is correct in all respects.(Dkt. No. 64, at 7-17, [Report-Recommendation].) Magistrate Judge Baxter employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Id.) As a result, the Court accepts and adopts the Report-Recommendation in its entirety for the reasons stated therein.*fn4

The Court would add only two points. First, the Court reads Davis v. Kelly, 160 F.3d 917 (2d Cir. 1998), as requiring the denial (without prejudice) of Defendant's motion for summary judgment, under the circumstances, merely out of an abundance of special solicitude to Plaintiff as a pro se civil rights litigant. The Court cautions Plaintiff that, once that further special solicitude has been rendered (in the form of an additional opportunity to conduct discovery, and an additional opportunity to file a motion for leave to file a Second Amended Complaint), if the same record evidence is presented to the Court (as is now presented to the Court on the current motion for summary judgment), the Court may well rule in favor of Defendant.

Second, during any renewed motion for summary judgment, Defendant is permitted to address the issue of whether sending a letter to the NYSIG complaining about the use of excessive force against a fellow inmate (with no indication that the letter was sent on behalf of that fellow inmate) is activity protected by the First Amendment. The Court notes that it appears far from certain that such activity is in fact protected by the First Amendment.*fn5 It should be emphasized that the only types of prisoner litigation activity protected by the First Amendment are (1) an attack on the plaintiff's sentence, directly or collaterally, and (2) a challenge to the conditions of the plaintiff's confinement.*fn6 It should also be emphasized that inmates have only a limited First Amendment right to assist other inmates with their legal claims.*fn7 Finally, it should be emphasized also that Plaintiff's letter to the NYSIG--as alleged--contains no indication that it was sent on behalf of, and/or even with the knowledge of, Inmate Wright.*fn8

ACCORDINGLY, it is

ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 64) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendant's motion for summary judgment (Dkt. No. 49) is GRANTED in part, to the extent that it requests the dismissal of any "official capacity" claims asserted in Plaintiff's Amended Complaint; and it is further

ORDERED that Plaintiff's Amended Complaint is DISMISSED to the extent that it asserts any "official capacity" claims against Defendant Greene; and it is further

ORDERED that Defendant's motion for summary judgment (Dkt. No. 49) is otherwise DENIED without prejudice in all other respects; and it is further

ORDERED that Plaintiff is GRANTED SIXTY (60) DAYS from the date of this Decision and Order to conduct further discovery so that he may attempt to ascertain the identity of the individuals at the Great Meadow C.F. involved in the decision to transfer him, and determine whether the stated reasons for his transfer were genuine; and it is further

ORDERED that, if warranted at the end of the sixty (60) days, Plaintiff is granted another THIRTY (30) DAYS to file a motion to amend his Amended Complaint; and it is further

ORDERED that Defendant is granted the opportunity to file a second motion for summary judgment; and it is further

ORDERED that Plaintiff's cross-motion for summary judgment (Dkt. No. 54) is DENIED.


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