UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
February 28, 2012
JEREMY SANTIAGO, PLAINTIFF,
K. HOLDEN, DEFENDANT.
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 Jeremy Santiago ("Plaintiff") against K. Holden ("Defendant"), are (1) Defendant's motion to dismiss for failure to state a claim and/or for summary judgment, and (2) United States Magistrate Judge David R. Homer's Report-Recommendation recommending that Defendant's motion be granted and that Plaintiff's action be dismissed. (Dkt. Nos. 9, 15.) For the reasons set forth below, Magistrate Judge Homer's Report-Recommendation is accepted and adopted in its entirety; Defendant's motion is granted; and Plaintiff's action is dismissed in its entirety with prejudice.
I. RELEVANT BACKGROUND
Construed with the utmost of liberality, Plaintiff's Complaint alleges that, while he was incarcerated at Great Meadow Correctional Facility ("Great Meadow C.F.") in Comstock, New York, Defendant violated his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution by denying him the right to practice his religion, subjecting him to cruel and unusual punishment, and retaliating against him for filing a grievance. (See generally Dkt. No. 1, at IV.) Familiarity with the factual allegations supporting these claims are assumed in this Decision and Order, which is intended primarily for review by the parties. (Id. at IV.)
On August 9, 2011, Defendant filed a motion to dismiss for failure to state a claim and/or for summary judgment for the following reasons: (1) Plaintiff has failed to exhaust his administrative remedies before filing this action; (2) Plaintiff has failed to state either a retaliation or religious discrimination claim; and (3) Defendant is entitled to both Eleventh Amendment and qualified immunity. (Dkt. No. 9, Points I-V.)*fn1
On August 17, 2011, Plaintiff filed his response in opposition to Defendant's motion. (Dkt. No. 12.) On September 14, 2011, the Court received from Plaintiff an Amended Complaint. (Dkt. No. 14.) The Amended Complaint was substantially the same as Plaintiff's original Complaint, asserting identical causes of action and no additional factual allegations. (Compare Dkt. No. 1 with Dkt. No. 14.)
On November 29, 2011, Magistrate Judge Homer issued an Order and Report-Recommendation rejecting Plaintiff's Amended Complaint as futile and recommending that Defendant's motion be granted. (Dkt. No. 15.) Familiarity with the grounds of Magistrate Judge Homer's Report-Recommendation is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id.) Plaintiff has not filed an Objection to Magistrate Judge Homer's Report-Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.)
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  the portions of the proposed findings, recommendations, or report to which it has an objection and  the basis for the objection." N.D.N.Y. L.R. 72.1(c).*fn2 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.*fn3
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.*fn4 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.*fn5 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.*fn6
After conducting 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).
Because Plaintiff has not filed an Objection to Magistrate Judge Homer's Report-Recommendation and the time in which to do so has expired, the Court need review the Report-Recommendation for only clear error, pursuant to the standard of review recited above in Part II.A of this Decision and Order. After doing so, the Court concludes that Magistrate Judge Homer's thorough Report-Recommendation is not clearly erroneous.(Dkt. No. 15 [Report-Recommendation].) Magistrate Judge Homer employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Id.) As a result, the Court adopts the Report-Recommendation in its entirety for the reasons stated therein. The Court would add only three points.
First, Magistrate Judge Homer's Report-Recommendation would survive even a de novo review.*fn7
Second, even if the Court were not to dismiss Plaintiff's action pursuant to Magistrate Judge Homer's Report-Recommendation, it would dismiss Plaintiff's action as a sanction for making two sworn material misrepresentations to the Court. The first such misrepresentation occurred in Plaintiff's original Complaint when he stated that had not "begun other lawsuits in state or federal court . . . relating to [his] imprisonment" as of April 16, 2011. (Dkt. No. 1, at ¶ I.A.) The second such misrepresentation occurred in his Amended Complaint when he stated that he had never "filed any other lawsuits in any state and federal court relating to [his] imprisonment" as of September 1, 2011. (Dkt. No. 14, at ¶ 5.a.)
Because both representations were made on a verified form complaints (see Dkt. No. 1, at 5, and Dkt. No. 14, at 6), they had the force and effect of sworn representations made in affidavits.*fn8
Moreover, both sworn representations were highly material, given the possibility of claim preclusion, issue preclusion, and the accumulation of three "strikes" (as described below) during the course of that ligation history.
Furthermore, both sworn representations were blatantly false. In fact,
by April 16, 2011, he had fled one other pro se prisoner civil rights
complaint in this District; and by September 1, 2011, Plaintiff had
filed two others pro se prisoner civil rights complaints in this
District. The first such action was filed on October 26,
2006,*fn9 and the second such action was filed June 7,
2011 (and was against the very Defendant in this action).*fn10
Moreover, it is clear from the Federal Judiciary's Public
Access to Court Electronic Records ("PACER") Service that, before he
filed his original Complaint in this action, Plaintiff had filed at
least one pro se prisoner civil rights case in the Southern District
of New York.*fn11
District Judges from this Court have indicated a willingness to sanction pro se litigants for making such sworn material misrepresentations to the Court.*fn12
Third, even if the Court were not to dismiss Plaintiff's action as a sanction for making a sworn material misrepresentation to the Court, at the very least it would direct Plaintiff to show cause as to why his in forma pauperis status should not be revoked as having been improvidently granted (and thus this action dismissed) under 28 U.S.C. § 1915(g) due to his acquisition of at least three "strikes" before he filed this action (on April 16, 2011), and his failure to alleged facts plausibly suggesting that he was under imminent danger of serious physical injury when he filed this action.*fn13 The Court notes that, in another of Plaintiff's actions, it directed him to show that he was not the plaintiff in the three cases cited in note 12 of this Decision and Order (who was assigned New York City Department of Correction "Book and Case" Number 349-08-14330 in between, at least, approximately February of 2009 and April 2010, at the George R. Vierno Center in East Elmhurst, New York). See Santiago v. K. Holden, 11-CV-0629, Memorandum-Decision and Order, at 2-5, 15 (N.D.N.Y. filed Jan. 10, 2012) (Suddaby, J.). As of the date of this Decision and Order, Plaintiff has not responded to that Order to Show Cause.
Finally, Plaintiff is cautioned that, should his unmerited filings in this District continue,*fn14 he will be directed to show cause as to why this Court should not issue an Order barring him from filing any future pro se actions without first obtaining leave of the Court, pursuant to 28 U.S.C. § 1651(a) and the Court's inherent authority to control and manage its own docket so as to prevent abuse in its proceedings.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Homer's Report-Recommendation (Dkt. No. 15) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendant's motion to dismiss for failure to state a claim and/for summary judgment (Dkt. No. 9) is GRANTED, and Plaintiff's action is DISMISSED in its entirety with prejudice.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Decision and Order would not be taken in good faith.