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Sidney E. Purdie v. Conners

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 30, 2012

SIDNEY E. PURDIE, PLAINTIFF,
v.
CONNERS, CORR. OFFICER, AUBURN CORR. FACILITY; C. GUZEWICZ, CORR. OFFICER, AUBURN CORR.FACILITY; AND VOSBERG, CORR. OFFICER, AUBURN CORR. FACILITY, DEFENDANTS.

The opinion of the court was delivered by: 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 Sidney E. Purdie ("Plaintiff") against the three above-named correctional employees ("Defendants"), are the following: (1) Defendants' motion for summary judgment (Dkt. No. 59); (2) Plaintiff's request for an "Order of Protection" (Dkt. No. 62); (3) the Magistrate Judge's Report-Recommendation recommending that the Court (a) grant Defendants' motion for summary judgment as to all claims against all Defendants, except the claim against Defendant Vosburg for retaliation arising from the assault of August 4, 2009, and (b) deny Plaintiff's motion for a protective order (Dkt. No. 66); and (4) Plaintiff's Objection to the Report-Recommendation (Dkt. No. 67). For the reasons set forth below, the Report-Recommendation is accepted and adopted except for its recommendation regarding the survival of Plaintiff's retaliation claim against Defendant Vosburg arising from the assault of August 4, 2009, which is dismissed; Defendants' motion for summary judgment is granted in its entirety; Plaintiff's motion for a protective order is denied; and his Second Amended Complaint is dismissed in its entirety.

I. RELEVANT BACKGROUND

A. Plaintiff's Second Amended Complaint

Plaintiff filed his initial Complaint on August 27, 2009. (Dkt. No. 1.) Plaintiff filed an Second Amended and Supplemental Complaint ("Second Amended Complaint") on July 20, 2010. (Dkt. No. 20.)*fn1 Generally, construed with the utmost of liberality, those portions of Plaintiff's Second Amended Complaint that remain pending in this action allege that, in July and August of 2009, while Plaintiff was incarcerated at Auburn Correctional Facility ("Auburn C. F."), Defendants retaliated against him for filing grievances and were deliberately indifferent a serious risk of harm to Plaintiff by paying another inmate to stab him. (Dkt. No. 20, at 2-6.)

More specifically, Plaintiff claims that Defendants violated his constitutional rights in the following manner: (1) Defendants Vosburg and Conners denied him recreational and meal privileges after Plaintiff submitted a complaint against Defendant Vosburg in violation of the First Amendment; (2) Defendant Vosburg paid an inmate with cigarettes to assault Plaintiff on August 4, 2009; and (3) Defendant Guzewicz failed to protect Plaintiff from an assault by an inmate in violation of the Eighth Amendment. (Id.)

For a more detailed recitation of Plaintiff's claims and factual allegations in support thereof, the Court refers the reader to the Second Amended Complaint in its entirety (Dkt. No. 20) and to the Magistrate Judge's Report-Recommendation, which accurately recites those claims and factual allegations (Dkt. No. 51).

B. Defendants' Motion for Summary Judgment

Generally, in support of their motion for summary judgment, Defendants assert the following two arguments: (1) Plaintiff has failed to establish a First Amendment claim against Defendants because Plaintiff has failed to establish that (a) Defendants took adverse action against Plaintiff, (b) Defendant Guzewicz had knowledge of any grievance filed against Defendants Vosburg or Connors by Plaintiff, and (c) Defendants Vosburg and Connors were personally involved in precluding Plaintiff from attending meal, recreation or shower; and (2) Plaintiff has failed to establish his Eighth Amendment claim against Defendants because Plaintiff has not established that (a) Defendants had prior knowledge that the assault on August 4, 2009, was going to occur, and (b) Defendants were otherwise deliberately indifferent to Plaintiff's safety. (Dkt. No. 59).

C. Plaintiff's Response and Request for a Protective Order

Even when construed with the utmost of special liberality, Plaintiff's response to Defendants' motion does not specifically oppose their motion. (Dkt. No. 62.) For example, Plaintiff's response includes neither a memorandum of law nor a Rule 7.1 Response. (Id.) Rather, Plaintiff's response includes a request for an Order of Protection for the unidentified witnesses who allegedly will testify against the remaining Defendants at the trial in this action. (Id.)

D. The Magistrate Judge's Report-Recommendation

Generally, the Magistrate Judge's Report-Recommendation recommends that Defendants' motion for summary judgment be granted in part and denied in part. (Dkt. No. 66.) More specifically, the Magistrate Judge concluded that all of Plaintiff's claims should be dismissed except for the retaliation claim asserted against Defendant Vosburg connecting him to the assault on August 4, 2009. (Id.) In addition, the Magistrate Judge recommended the denial of Plaintiff's request for a protective order, because Plaintiff has not (1) provided the identities of the witness for whom Plaintiff seeks protection, or (2) demonstrated that the witnesses' lives are in danger. (Id. at 24-25.)

E. Plaintiff's Objection to the Report-Recommendation

Generally, in his Objection, Plaintiff asserts the following two arguments: (1) Defendant Connors should not be dismissed from the action because (a) he had knowledge of, and failed to investigate, Plaintiff's grievance filed against Defendant Vosburg, and (b) he imposed meal, recreation, and shower restrictions on Plaintiff in retaliation for the grievance filed against Defendant Vosburg; and (2) Defendant Guzewicz did not follow routine procedure for inmate meal escorts, which led to the assault by inmate Zebrowski on August 4, 2009. (See generally Dkt. No. 67.)

In addition, Plaintiff makes the following two admissions to the Magistrate Judge's findings in the Report-Recommendation: (1) Defendant Guzewicz may not have been aware that inmate Zebrowski would assault Plaintiff because Plaintiff had not reported any problems between inmate Zebrowski and himself; and (2) it is unlikely that inmate Zebrowski would have risked more prison time to assault Plaintiff simply in exchange for cigarettes. (Dkt. No. 67 at 15.)

II. 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).*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).

B. Standard of Review Governing Motions for Summary Judgment

The Magistrate Judge accurately recited the legal standard governing motions for summary judgment. (Dkt. No. 66 at 5-7.) As a result, this standard is incorporated by reference in this Decision and Order, which is intended primarily for the review of the parties.

III. ANALYSIS

Even when construed with the utmost of liberality, Plaintiff's Objection contains only two specific challenges to the Magistrate Judge's Report-Recommendation, the remaining portions of the Report-Recommendation either being ignored or conceded to by Plaintiff. See, supra, Parts I.E. and II.A. of this Decision and Order. After carefully reviewing de novo those portions of the Report-Recommendation that Plaintiff specifically challenges, and reviewing for clear error the remaining portions of the Report-Recommendation that Plaintiff does not specifically challenge, the Court adopts the thorough Report-Recommendation for the reasons stated therein, except for its recommendation regarding the survival of Plaintiff's retaliation claim against Defendant Vosburg arising from the assault of August 4, 2009, which is also dismissed.*fn7 The Court reaches this latter conclusion for each of the reasons offered by Defendants in their memorandum of law. (See Dkt. No. 59, Attach. 8, at 4-7 [attaching pages "2" through "5" of Defs.' Memo. of Law].) The Court would add only four brief points.

First, based on the current record, the Court finds that it would be speculation to conclude that Defendant Vosburg was aware of any of Plaintiff's three letters of complaint about him before August 4, 2009. Notably, none of those three letters was addressed to Defendant Vosburg; only two of them regarded him exclusively; and only one was submitted to the facility's Inmate Grievance Resolution Committee.*fn8 Moreover, during the 12 to 16 days that passed between the sending of the letters (on July 19, 21, and 23, 2009) and the assault (on August 4, 2009), Plaintiff never spoke to Defendant Vosburg.*fn9

Second, even if it were not speculation to conclude that Defendant Vosburg was aware of any of Plaintiff's three letters of complaint about him before August 4, 2009, it would be, and is, speculation to conclude that Defendant Vosburg was the individual who allegedly caused Plaintiff to be stabbed by a fellow inmate. The only evidence that Plaintiff has to suggest Defendant Vosburg's involvement is the following: (1) the general (12-16 day) proximity between his three letters of complaint and the assault; and (2) Plaintiff's own testimony (in his Verified Second Amended Complaint and deposition transcript) that two unidentified inmates had told Plaintiff that, at some unidentified point in time, Defendant Vosburg had offered them cigarettes to stab Plaintiff.*fn10 In addition to being fatally vague in terms of timing, the statements by the other unidentified inmates constitute inadmissible hearsay because the only record evidence as to the existence of such inmates (and their alleged statements) comes from Plaintiff. Moreover, the general proximity between the complaints and the assault constitutes merely a "scintilla" of evidence in support of a causal connection (which is insufficient to survive a motion for summary judgment).*fn11 This is especially true given the other undisputed facts of the case, including the following: (1) the fact that the first of Plaintiff's three complaints also regarded Defendant Conner;*fn12 (2) the fact that, again, during the 12-16 day period, Plaintiff never spoke to Defendant Vosburg; (3) the fact that Defendant Vosburg was not present on Plaintiff's cellblock when he was stabbed on August 4, 2009;*fn13 (4) the fact that it was Defendant Guzewicz who was present on that cellblock at that time, and who Plaintiff alleges let another inmate into his cell to attack him; (5) the fact that the facility's Inmate Grievance Resolution Committee concluded, after an investigation, that "the grievance [accusing Defendant Vosburg of paying an inmate with cigarettes to assault Plaintiff] can not be substantiated due to lack of evidence";*fn14 and (6) of course, the fact that Defendant Vosburg has sworn that he "had no prior knowledge that the [incident] was going to happen, and [he] did not ask any individual to cause physical harm to [Plaintiff]."*fn15

Simply stated, the undersigned respectfully disagrees with the Magistrate Judge that any rational fact-finder could conclude, from the above-described evidence, that (1) it was Defendant Vosburg (and not someone else) who took adverse action against him, and (2) any such adverse action by Defendant Vosburg was caused by one or more of Plaintiff's three complaints.

Third, Plaintiff's Second Amended Complaint (both the portions regarding Defendant Vosburg and other portions) is dismissed in its entirety for the alternative reason that Plaintiff has (1) failed to submit an adequate Rule 7.1 Response to Defendants' Rule 7.1 Statement, and (2) failed to oppose the legal arguments asserted in Defendants' memorandum of law. (Compare Dkt. No. 59, Attach. 7-8 with Dkt. No. 62.)Defendants' Rule 7.1 Statement was properly supported by accurate record citations and, together with Defendants' memorandum of law, at the very least satisfied Defendants' modest threshold burden on their motion. See, supra, Part I.C. of this Decision and Order.*fn16 The Court notes that Plaintiff (who was an experienced pro se civil rights litigant before responding to Defendants' motion for summary judgment)*fn17 received adequate advanced notice of his need to properly respond to Defendants' motion papers, including their Rule 7.1 Statement. (Dkt. No. 59, Attach. 1 [District's "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion"].)*fn18

Fourth, and finally, the Court notes that, to the extent that any of the approximately 115 pages of exhibits attached to Plaintiff's Objections were not part of the record presented to the Magistrate Judge on Defendants' motion, the Court declines to consider them. (Dkt. No. 67, at 25-140.) See also, supra, note 3 of this Decision and Order.

For all of these reasons, the Court grants Defendants' motion for summary judgment in its entirety.

ACCORDINGLY, it is

ORDERED that the Magistrate Judge's Report-Recommendation (Dkt. No. 66) is ACCEPTED and ADOPTED except for its recommendation regarding the survival of Plaintiff's claim against Defendant Vosburg for allegedly paying an inmate to attack Plaintiff; and it is further

ORDERED that Defendants' motion for summary judgment (Dkt. No. 59) is GRANTED in its entirety; and it is further

ORDERED that Plaintiff's Second Amended Complaint (Dkt. No. 20) is DISMISSED in its entirety; and it is further

ORDERED that Plaintiff's request for a protective order (Dkt. No. 62) is DENIED; and it is further

ORDERED that the Clerk of the Court shall issue a Judgment for Defendants and close the file in this action.


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