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Butler v. Hogue

October 13, 2010

KEITH TERRELL BUTLER, PLAINTIFF,
v.
J. HOGUE, CORRECTION OFFICER, UPSTATE CORRECTIONAL FACILITY; AND J. HYDE, CORRECTION OFFICER, UPSTATE CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Keith Terrell Butler, an inmate at Clinton Correctional Facility, brings this action under 42 U.S.C. § 1983 against defendants J. Hogue and J. Hyde. (Compl., Dkt. No. 1.) Butler alleges that during his incarceration at Upstate Correctional Facility, Hyde and Hogue violated his First, Eighth, and Fourteenth Amendment rights by serving Butler a contaminated kosher meal on one occasion and soup in a defective container the following day. (Id.; see also Pl. Objections, Dkt. No. 48.) Butler moved for summary judgment and Hogue and Hyde cross-moved for judgment on the pleadings. (Dkt. Nos. 36, 40.) On February 4, 2010, Magistrate Judge David R. Homer issued a Report and Recommendation Order (R&R) recommending that Butler's motion be denied, that Hogue and Hyde's cross-motion for judgment on the pleadings be converted into a cross-motion for summary judgment, and that the cross-motion be granted, dismissing Butler's complaint in its entirety. (Dkt. No. 46.) Pending are Butler's objections to the R&R. (Dkt. No. 48.) For the reasons that follow, the R&R is adopted in its entirety.

II. Standard of Review

Before entering final judgment, this court routinely reviews all report-recommendations in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.

III. Discussion

Based on Bulter's submission of various documents outside the pleadings in support of his summary judgment motion and defendants' consequent reference to and reliance on those documents, Judge Homer recommended that Hogue and Hyde's Rule 12(c) cross-motion to dismiss be converted into a motion for summary judgment. (See R&R at 5, Dkt. No. 46.) Hogue and Hyde raise no objections to the R&R or the conversion of their motion. The court finds no error in this conversion.

Butler raises no objection to Judge Homer's conclusion that any infringement on his First Amendment rights was de minimis and that Butler's complaint therefore fails to state any First Amendment claim as to which relief can be granted. (Id. at 7-9.) The court concurs in that conclusion. Butler also does not protest the denial of his motion to amend his statement of material facts. (Id. at 2 n.3.) Because no reason was given for the request, the court affirms the denial of the motion.

Construing Butler's objections liberally, they specifically challenge Judge Homer's conclusion that his Eighth and Fourteenth Amendment rights were not violated. Consequently, those conclusions must be reviewedde novo. Insofar as the court can consider the challenges without straying too far from the documents provided prior to the filing of the objections, Butler's arguments are without merit. The objections themselves contain new information relating to Butler's medical condition of diabetes, previously unmentioned and not suggested by the submissions, which this court declines to consider for the first time at this late stage. (See Pl. Objections at 2, Dkt. No. 48.) Although a district court has the option to "receive further evidence" when reviewing a magistrate judge's report and recommendation de novo, the court will not do so unless the presenting party offers a sufficient justification for admission. FED. R. CIV. P. 72(b)(3); see Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1999) ("[W]e have upheld the exercise of the district court's discretion in refusing to allow supplementation of the record upon the district court's de novo review." (italics omitted)). Plaintiff has offered no justification for the delay in presenting this evidence and thus the court declines to consider this new claim.

Butler raises other additional, and more recent, allegations in his objections. He claims, for example, that he has been retaliated against, that his legal files were stolen, and that he was beaten by correction officers on December 30, 2009. (See Pl. Objections at 2-3, Dkt. No. 48.) Again, these claims are beyond the scope of the present cause of action and will not be addressed here.

A. Fourteenth Amendment Claims

Turning to Butler's Fourteenth Amendment due process claims, the R&R observes that it is "unclear how Butler determined that his Fourteenth Amendment rights have been violated." (R&R at 2, Dkt. No. 46.) Whatever the claim's genesis, Judge Homer correctly determined that even taking as true all Butler's pleaded facts and all reasonable inferences drawn therefrom, Butler cannot show that his due process or equal protection rights have been violated and that he is entitled to judgment as a matter of law.

In order for a prisoner to show that his procedural due process rights have been violated, he must first establish that he possessed a protected liberty interest in avoiding the hardship. See Sandin v. Conner, 515 U.S. 472, 484 (1995). To show a protected liberty interest, a prisoner must show that the alleged harm "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. Butler has pleaded no facts and benefits from no inferences that meet the significant hardship requirement. The absence of any viable liberty interest at stake also compels the conclusion that Hogue and Hyde are entitled to judgment as a matter of law.

The court further notes that Butler can have no substantive due process claim independent of his Eighth Amendment claims. Where there is an explicit textual source of constitutional protection relevant to a claim, that source, rather than substantive due process, governs the analysis. Graham v. Connor, 490 U.S. 386, 395 (1989); see also County of Sacramento v. Lewis, 523 U.S. 833, 842-843 (1998). In light of Butler's incarceration, any ...


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