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Mark E. Cannon v. C.O. E. Wood

January 23, 2012

MARK E. CANNON, PLAINTIFF,
v.
C.O. E. WOOD, UPSTATE CORRECTIONAL FACILITY; SAINT MARY, CORRECTIONAL OFFICER, UPSTATE CORRECTIONAL FACILITY; RELF, CORRECTIONAL OFFICER, UPSTATE CORRECTIONAL FACILITY; WINSTON, CORRECTIONAL OFFICER, UPSTATE CORRECTIONAL FACILITY; D. PRICE, CORRECTIONAL OFFICER, UPSTATE CORRECTIONAL FACILITY; M. EDDY, SERGEANT, UPSTATE CORRECTIONAL FACILITY; NURSE HOLMES, UPSTATE CORRECTIONAL FACILITY; AND BULIS, HEARING OFFICER, UPSTATE CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this pro se prisoner civil rights action filed by Mark E. Cannon ("Plaintiff") against the eight above-captioned employees of the New York State Department of Corrections and Community Services ("Defendants"), are (1) Defendants' motion to dismiss for failure to state a claim, and (2) United States Magistrate Judge Randolph F. Treece's Report-Recommendation recommending that Defendants' motion be granted in part and denied in part. (Dkt. Nos. 22, 31.) No objections have been filed and the deadline by which to do so has expired. 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.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Plaintiff filed his Complaint in this action on November 4, 2010. (Dkt. No. 1.) Generally, construed with the utmost of liberality, Plaintiff's Complaint alleges that, between approximately February 2010 and May 2010, at Upstate Correctional Facility in Dannemora, New York, the following Defendants committed the following constitutional violations against him: (1) Defendants Saint Mary and Winston denied him access to the barbershop for several months in retaliation for filing a grievance in violation of the First Amendment; (2) Defendants Relf and Wood used excessive force against him during a cell transport in violation of the Eighth Amendment, while Defendant Eddy witnessed that force and failed to protect him in violation of the Eighth Amendment; (3) Defendant Holmes did not physically examine Plaintiff after the alleged assault in violation of the Eighth Amendment; and (4) Plaintiff was confined to a "Drug Watch" unit for seven days, was issued a false misbehavior report in violation of the Eighth Amendment, and was allegedly denied due process rights by Defendant Bulis during the disciplinary hearing in violation of the Fourteenth Amendment. (See generally Dkt. No. 1 [Plf.'s Compl.].) Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

B. Defendants' Motion to Dismiss

On March 8, 2011, Defendants filed a motion to dismiss Plaintiff's Complaint for failure to state a claim seeking dismissal of all of Plaintiff's claims. (Dkt. No. 22.) Generally, in support of their motion to dismiss, Defendants argue as follows: (1) Plaintiff's claims for monetary damages are barred by the Eleventh Amendment; (2) Plaintiff fails to state a constitutional claim against Defendants Winston and Saint Mary; (3) Plaintiff fails to allege facts plausibly suggesting the personal involvement of Defendant Price in any of the alleged constitutional violations; (4) Plaintiff's allegations of wrongdoing are conclusory and insufficient to state a constitutional claim; and (5) Defendants are entitled to qualified immunity. (See generally Dkt. No. 22, Parts I-V [Defs.' Memo. of Law].) On April 18, 2011, Plaintiff filed a response to Defendants' motion. (Dkt. No. 23.) On April 19, 2011, Defendants filed a reply to Plaintiff's response. (Dkt. No. 24.)

C. Magistrate Judge Treece's Report-Recommendation

On August 12, 2011, Magistrate Judge Treece issued a Report-Recommendation recommending that Defendants' motion be granted in part and denied in part. (Dkt. No.31.) Familiarity with the grounds of Magistrate Judge Treece's Report-Recommendation is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. Plaintiff did not submit an objection to the Report-Recommendation.

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review

When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).*fn1 When performing such a de novo review, "[t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.*fn2

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition.*fn3 Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.*fn4 Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.*fn5

After conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the ...


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