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Victor Altheus De Ponceau v. J. Bruner

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 23, 2012

VICTOR ALTHEUS DE PONCEAU, PLAINTIFF,
v.
J. BRUNER, CORRECTIONS OFFICER;
J. SMITH, CORRECTIONS LIEUTENANT;
C. GOODMAN, CORRECTIONS LIEUTENANT;
D. MURRAY, WATCH COMMANDER;
D. WILLIAMS, GRIEVANCE SERGEANT; REYNOLDS, CORRECTIONS SERGEANT;
RUSSELL, CORRECTIONS OFFICER;
J. TAYLOR, CORRECTIONS OFFICER;
POMAINVILLE, CORRECTIONS OFFICER;
LEDUCA, CORRECTIONS SERGEANT, AND
JOHN AND JANE DOES, GREAT MEADOW CORRECTIONAL FACILITY, 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 Victor Altheus De Ponceau ("Plaintiff") against the twelve above-captioned New York State correctional employees ("Defendants"), are the following: (1) Defendants' motion to dismiss Plaintiff's Third Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6); (2) United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that Defendants' motion be granted in part and denied in part, such that all of Plaintiff's claims, except for his claims of excessive force and failure to protect, are dismissed; (3) Plaintiff's Objection to the Report-Recommendation; and (4) Plaintiff's Supplemental Objection to the Report-Recommendation. (Dkt. Nos. 54, 72, 73, 75.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendant's motion is granted in part and denied in part; and all of Plaintiff's claims are dismissed with prejudice, except for his claims of excessive force and failure to protect against Defendants LeDuca, D. Williams, and D. Murray, which remain pending in this action.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Plaintiff filed his original Complaint in this action on May 6, 2009. (Dkt. No. 1.) He filed his Third Amended Complaint on September 2, 2010. (Dkt. No. 24.) Generally, construed with the utmost of liberality, Plaintiff's Third Amended Complaint asserts the following seven claims against the twelve above-captioned Defendants: (1) Defendants J. Bruner, Russell and J. Taylor subjected Plaintiff to cruel and unusual punishment by making verbal threats to him on several occasions, in violation of the Eighth Amendment; (2) Defendants J. Bruner and Pomainville denied Plaintiff of his right to procedural due process by issuing false misbehavior reports against him, in violation of the Fourteenth Amendment; (3) Defendants LeDuca, D. Williams, and D. Murray used excessive force against him and failed to protect him, in violation of the Eighth Amendment; (4) Defendant J. Smith conspired to cover up the assault, in violation of 42 U.S.C. § 1983 (and his rights under the First, Eighth and/or Fourteenth Amendments); (5) Defendants Goodman and Pomainville retaliated against Plaintiff, by issuing false misbehavior reports against him because he complained about the assault by Defendant LeDuca, in violation of the First Amendment; (6) Defendants Reynolds and John and Jane Does retaliated against Plaintiff, and denied him of his right to the free flow of mail, by withholding a mail delivery because Plaintiff complained about the assault by Defendant LeDuca, in violation of the First Amendment; and (7) Defendant C. Goodman denied him of rights to procedural due process, by conducting a biased disciplinary hearing, in violation of the Fourteenth Amendment. (Id.)

For a more detailed recitation of Plaintiff's claims and supporting factual allegations, the Court refers the reader to the Third Amended Complaint in its entirety, as well as Magistrate Judge Peebles' Report-Recommendation, which accurately summarize those allegations. (Dkt. No. 24; Dkt. No. 72, at 4-5, 8, 13-32 [summarizing claims].)

B. Defendants' Motion to Dismiss

On March 17, 2011, Defendants filed a motion to dismiss. (Dkt. No. 54.) Generally, in support of their motion, Defendants assert the following eight arguments: (1) Plaintiff fails to allege facts plausibly suggesting an excessive force claim against Defendants Murray, Williams and LeDuca; (2) Plaintiff's procedural due process claims against Defendants Bruer and Pomainville, arising from the filing of false misbehavior reports, are not actionable; (3) Plaintiff has failed to allege facts plausibly suggesting a procedural due process claim against Defendant Goodman, arising from his conducting of Plaintiff's disciplinary hearing; (4) Plaintiff's verbal-abuse claims against Defendants Bruner, LeDuca, Russell, Taylor and Williams are not actionable; (5) Plaintiff's mail tampering claim against Defendant Reynolds is not actionable; (6) Plaintiff fails to allege any facts to support a conspiracy claim against Defendant Smith; (7) under the circumstances, the Eleventh Amendment bars Plaintiff's claims to the extent they are asserted against Defendants in their official capacities; and (8) based on the factual allegations of Plaintiff's Third Amended Complaint, Defendants are protected from liability as a matter of law by the doctrine of qualified immunity. (Dkt. No. 1, Attach. 1.)

C. Magistrate Judge Peebles' Report-Recommendation

On February 21, 2012, Magistrate Judge Peebles issued a Report-Recommendation recommending that Defendants' motion be granted in part and denied in part. (Dkt. No. 72.) More specifically, Magistrate Judge Peebles recommended that, while Plaintiff's excessive force and failure to protect claims should survive Defendants' motion, Plaintiff's remaining claims should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). (Id.)

D. Plaintiff's Objection and Supplemental Objection to the Report-Recommendation

On February 24, 2012, Plaintiff filed an Objection to the Report-Recommendation. (Dkt. No. 73.) Generally, in his Objection, Plaintiff asserts the following three arguments, in pertinent part: (1) in August 2011, Defendant Martin Rocque issued a "bogus" misbehavior report against Plaintiff for fighting, which was dismissed at the Tier III hearing; (2) in January 2012, Defendant Rocque confiscated his typewriter and television during a cell search and issued Plaintiff a ticket for "contraband unauthorized item"; and (3) in February 2012, Defendant Colleen Russell issued a "bogus" misbehavior ticket charging Plaintiff with sexually harassing a prison volunteer, which was dismissed at the hearing. (Id.)

On February 28, 2012, Plaintiff filed a Supplemental Objection to the Report-Recommendation. (Dkt. No. 75.) Generally, in his Supplemental Objection, Plaintiff asserts the following three arguments, in pertinent part: (1) Magistrate Judge Peebles committed "fraud" and ethics violations by not performing the duties of his judicial office impartially and diligently; (2) Magistrate Judge Peebles erred by misrepresenting the nature of, and/or law governing, Plaintiff's claims regarding verbal abuse, false misbehavior reports, excessive force, conspiracy, retaliation, the biased disciplinary hearing, the interference with Plaintiff's free-flow of mail; and (3) Magistrate Judge Peebles has denied Plaintiff discovery. (Id. at 1-75.) In addition, Plaintiff's Supplemental Objection attaches 34 pages of "supplemental exhibits." (Id. at 76-109.)

I. APPLICABLE LEGAL STANDARDS

A. Standard of Review Governing a Report-Recommendation

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 magistrate judge." 28 U.S.C. § 636(b)(1)(C).

B. Standard of Review Governing a Motion to Dismiss

Magistrate Judge Peebles correctly recited the legal standard governing a motion to dismiss dismissal pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 72, at 10-13.) As a result, these standards are incorporated by reference in this Decision and Order, which is intended primarily for the review of the parties.

The Court would add only a few words regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.*fn6 Moreover, in the Second Circuit, a pro se plaintiff's papers in response to a defendant's motion to dismiss for failure to state a claim may be considered as effectively amending the allegations of his complaint--to the extent those papers are consistent with the allegations in the complaint.*fn7

III. ANALYSIS

For the sake of brevity, the Court will liberally construe Plaintiff's original Objection and his Supplemental Objection together as effectively challenging each and every finding and recommendation of Magistrate Judge Peebles' Report-Recommendation, so as to subject that Report-Recommendation to a de novo review, rather than a clear-error review.

After carefully reviewing the relevant filings in this action, the Court can find no error in the Report-Recommendation: Magistrate Judge Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 72) As a result, Magistrate Judge Peebles' Report-Recommendation recommending dismissal of all of Plaintiff's claims, with the exception of his claims of excessive force and failure to protect, is accepted and adopted in its entirety for the reasons stated therein. (Id.)

The Court would add only the following seven brief points. First, Plaintiff's original Objection is premised on several alleged events occurring after the filing of his Third Amended Complaint on September 2, 2010. (Compare Dkt. No. 24 with Dkt. No. 73.) The Court rejects any attempt by Plaintiff to change the landscape of his claims at this late stage of this action, which would be unfairly prejudicial to Defendants and a gross waste of judicial resources under the Magistrates Act.*fn8 For the same reason, the Court rejects Plaintiff's attempt to introduce (into this analysis of the factual allegations of Plaintiff's Third Amended Complaint) 34 pages of "supplemental exhibits" during the objection phase of this proceeding.

Second, on a related subject, the Court emphasizes that, as Magistrate Judge Peebles correctly noted, a court need not afford a pro se civil rights litigant another opportunity to amend his claims when the litigant has already been afforded the opportunity to amend. Abascal v. Hilton, 04-CV-1401, 2008 WL 268366, at *8 (N.D.N.Y. Jan. 13, 2008) (Kahn, J., adopting, on de novo review, Report-Recommendation by Lowe, M.J.) ("Of course, granting a pro se plaintiff an opportunity to amend is not required where the plaintiff has already been given a chance to amend his pleading."), aff'd, 357 F. App'x 388 (2d Cir. 2009); accord, Shuler v. Brown, 07-CV-0937, 2009 WL 790973, at *5 & n.25 (N.D.N.Y. March 23, 2009) (McAvoy, J., adopting Report-Recommendation by Lowe, M.J.), Smith v. Fischer, 07-CV-1264, 2009 WL 632890, at *5 & n.20 (N.D.N.Y. March 9, 2009) (Hurd, J., adopting Report-Recommendation by Lowe, M.J.).*fn9 Here, he has been afforded that opportunity three times: the first time on November 9, 2009, the second time on November 13, 2009, and the third time on September 2, 2010. (Dkt. Nos. 13, 14, 24.) While special solicitude must be afforded to a pro se prisoner civil rights litigant, the undersigned does not perceive it to be the function of a United States district court (especially one in a congested district) to operate a two-and-a-half-year-long complaint-drafting seminar for that litigant, complete with three rounds of edits and rewrites.*fn10

Third, in his Supplemental Objections, Plaintiff makes certain lewd remarks about the honorable magistrate judge. (See, e.g., id. at 11-12.) While the undersigned certainly understands the frustrations of litigating a prisoner civil rights action pro se, the undersigned simply cannot tolerate such disrespect for the Court in this proceeding. Plaintiff is cautioned that, should he make such remarks in the future in this proceeding, he will be sanctioned appropriately (e.g., through the denial of a motion, the imposition of a reasonable monetary fine, and/or the dismissal of one or more of his claims).

Fourth, even if Plaintiff's Third Amended Complaint could be liberally construed as asserting a claim that Defendant J. Taylor retaliated against Plaintiff by threatening to "hit [him] with [a] baton/nightstick . . . to [or] from chow . . . and . . . [the] yard" on three occasions because he complained about the assault by Defendant LeDuca (in violation of the First Amendment), that claim would be dismissed for failing to allege facts plausibly suggesting a causal connection between his making of a complaint and the alleged adverse action.

Fifth, even if Plaintiff's Third Amended Complaint could be liberally construed as asserting a claim that Defendant Goodman retaliated against him by conducting a "one sided" disciplinary hearing because he complained about the assault by Defendant LeDuca (in violation of the First Amendment), that claim would be dismissed for failing to allege facts plausibly suggesting either (1) sufficiently chilling adverse action or (2) a causal connection between his making of a complaint and that adverse action.

Sixth, Plaintiff's argument that Magistrate Judge Peebles has wrongfully deprived him of the opportunity to conduct discovery is unpersuasive, especially given that the deficiencies identified by the Report-Recommendation and this Decision and Order are not evidentiary deficiencies under Fed. R. Civ. P. 56 but pleading deficiencies under Fed. R. Civ. P. 12(b)(6).

Seventh, and finally, even if Plaintiff's claims against the John and Jane Doe Defendants were not dismissed for the reasons stated in Part III.F. of the Report-Recommendation, those claims would be dismissed without prejudice for failure to name and serve those Doe Defendants under Fed. R. Civ. P. 4(m), Fed. R. Civ. P. 41(b), and Local Rule 41.2(a) of the Local Rules of Practice for this Court.

For all of these reasons, all of Plaintiff's claims are dismissed with prejudice, except for his claims of excessive force and failure to protect, against Defendants LeDuca, D. Williams, and D. Murray.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 72) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendants' motion to dismiss (Dkt. No. 54) is GRANTED in part and DENIED in part, such that all of Plaintiff's claims are DISMISSED with prejudice-- EXCEPT for his claims of excessive force and failure to protect against Defendants LeDuca, D. Williams, and D. Murray, which remain pending in this action; and it is further

ORDERED that the Clerk of the Court shall send Plaintiff a courtesy copy of the docket sheet in this action (as he requested on page 6 of his Supplemental Objection).


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