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Eugene Sidney v. T.L. Caron

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


September 25, 2012

EUGENE SIDNEY, PLAINTIFF,
v.
T.L. CARON, CORR. COUNSELOR, UPSTATE CORR. FACILITY; T. TYNON, SENIOR CORR. COUNSELOR, UPSTATE CORR. FACILITY; M. LIRA, DEPUTY SUPERINTENDENT FOR PROGRAM SVCS., UPSTATE CORR. FACILITY; BRIAN S. FISCHER, COMM'R; MR. J. BELLNIER; AND MR. RANIERI, DEFENDANTS.

The opinion of the court was delivered by: Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this pro se prisoner civil rights action filed by Eugene Sidney ("Plaintiff") against the six above-named Defendants, are (1) Defendants' motion to dismiss Plaintiff's Amended Complaint for failure to state a claim and/or motion for summary judgment (Dkt. No. 100), (2) United States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Defendants' motion be granted (Dkt. No. 110), and (3) Plaintiff's Objection to the Report-Recommendation (Dkt. No. 111). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendants' motion is granted; and Plaintiff's Amended Complaint is dismissed in its entirety.

I. RELEVANT BACKGROUND

A. Claims Asserted in Plaintiff's Amended Complaint

Plaintiff filed his Complaint in this action on November 27, 2009. (Dkt. No. 1.) On April 23, 2010, Plaintiff filed an Amended Complaint. (Dkt. No. 15.) Construed with the utmost of liberality, Plaintiff's Amended Complaint alleges that, while he was incarcerated at Upstate Correctional Facility in Malone, New York, Defendants violated his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution in the following manner: (1) Defendants issued false misbehavior reports against him in retaliation for engaging in protected activity; (2) Defendants violated his due process rights by issuing false misbehavior reports, and imposing sanctions (including dietary restrictions), against him; (3) Defendants interfered with his ability to file grievances; (4) Defendants disrupted the free-flow of his mail; (5) by imposing "food loaf" sanctions on him, Defendants subjected him to inadequate conditions of confinement; and (6) Defendants conspired to deny him his constitutional rights. (See generally Dkt. No. 15 [Plf.'s Am. Compl.]). Familiarity with the factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties.

B. Parties' Briefing on Defendants' Motion

On September 27, 2011, Defendants filed a motion to dismiss Plaintiff's Amended Complaint for failure to state a claim and/or for motion for summary judgment. (Dkt. No. 100.) Generally, in support of their motion, Defendants assert the following eight arguments: (1) Plaintiff has failed to allege facts plausibly suggesting a claim for retaliation;*fn1 (2) Plaintiff has failed to allege facts plausibly suggesting a claim for the denial of his right of access to the courts;

(3) Plaintiff has failed to allege facts plausibly suggesting a claim for the denial of his right to the free flow of mail; (4) Plaintiff has failed to allege facts plausibly suggesting a claim for the denial of his right to procedural due process; (5) Plaintiff has failed to allege facts plausibly suggesting a claim of inadequate prison conditions; (6) Plaintiff has failed to allege facts plausibly suggesting a claim of conspiracy; (7) in any event, Plaintiff has failed to allege facts plausibly suggesting the personal involvement of Defendants Bellnier, Fischer, Lira, and Tynon in the constitutional violations alleged; and (8) in any event, based on the record evidence before the Court, Plaintiff

failed to exhaust his available administrative remedies before filing his Amended Complaint. (Dkt. No. 100, Attach. 5 [Defs. Memo. of Law].)

On October 24, 2011, Plaintiff filed a response to Defendants' motion. (Dkt. No. 106.) Generally, in his response, Plaintiff asserts the following four arguments: (1) the Court need only make a telephone call, or send "an efficient communicat[ion]," to the "Public Integrity Bureau" in order to confirm that Plaintiff's conspiracy claim has merit; (2) the doctrine of res judicata bars the dismissal of Plaintiff's due process claims, given a hearing officer's prior dismissal of Defendant Caron's fourteenth misbehavior report; (3) based on the record evidence before the Court, Defendants Bellnier, Fischer, Lira, and Tynon were personally involved in the constitutional violations alleged; (4) based on the record evidence before the Court (e.g., which shows that his wife never called DOCCS to complain about his calling her), Plaintiff has established viable claims the denial of his right to procedural due process, and the denial of adequate prison conditions; and (5) based in part on the (purported) fact that a second grievance was "pilfered by theivery hands," Plaintiff exhausted his available administrative remedies before filing his Amended Complaint. (Id.)*fn2

On November 8, 2011, Defendants filed their reply to Plaintiff's response. (Dkt. No. 108.) Generally, in their reply, Defendants assert the following six arguments: (1) Plaintiff's conspiracy argument should be rejected because it addresses the wrong conspiracy, addressing an earlier alleged conspiracy that does not give rise to a claim in Plaintiff's Amended Complaint; (2) because Plaintiff has failed to oppose Defendants' motion on the access-to-courts claim, the free-flow-of-mail claim, and the relevant conspiracy claim, these three claims should be summarily dismissed; (3) because Plaintiff has conceded that he received and signed a copy of the negative correspondence list before the issuance of any misbehavior reports, he has has failed to allege facts plausibly suggesting a claim for retaliation; (4) under the circumstances, the dismissal of Defendant Caron's fourteenth misbehavior report (which did not address any of the prior such misbehavior reports) does not preclude Plaintiff's current procedural due process claim pursuant to the doctrine of res judicata; (5) none of the record evidence cited by Plaintiff is a sufficient basis on which a rational fact finder could conclude that Defendants Bellnier, Fischer, Lira, and Tynon were personally involved in the constitutional violations alleged; and (6) because Plaintiff does not argue that any Defendant stole the purported second grievance (or describe the contents of it, or argue that he attempted to refile it), Plaintiff failed to exhaust his available administrative remedies before filing his Amended Complaint. (Id.)

C. Magistrate Judge Baxter's Report-Recommendation

On January 3, 2012, Magistrate Judge Baxter issued a Report-Recommendation recommending that Defendants' motion be granted. (Dkt. No. 110.) Generally, in his Report-Recommendation, Magistrate Judge Baxter made the following two findings: (1) based on the record evidence, Plaintiff's claims for retaliation, the denial of his right of access to the courts, the denial of his right to adequate conditions of confinement, and conspiracy should be dismissed based on Plaintiff's failure to exhaust his available administrative remedies before filing his Amended Complaint; and (2) because Plaintiff failed to allege facts plausibly suggesting a procedural due process claim and free-flow-of-mail claim, those claims should be dismissed. (Id.) Familiarity with the grounds supporting Magistrate Judge Baxter's Report-Recommendation is assumed in this Decision and Order. (Id.)

D. Plaintiff's Objections

On January 12, 2012, Plaintiff filed his Objection to the Report-Recommendation. (Dkt. No. 111.) Liberally construed, Plaintiff's Objection, which asserts 15 inter-related challenges to the Report-Recommendation, essentially assert the following four arguments: (1) Magistrate Judge Baxter erred by overlooking the record evidence that Plaintiff's second grievance was lost or stolen (e.g., Plaintiff's affidavit of October 29, 2009), which shows that he exhausted his available administrative remedies with regard to his claims of retaliation, the denial of his right of access to the courts, the denial of his right to adequate conditions of confinement, and conspiracy;

(2) Magistrate Judge Baxter erred by overlooking the record evidence that his wife never called DOCCS to complain about Plaintiff writing her, which shows that Defendants' negative correspondence report was issued without justification, warranting the survival of Plaintiff's procedural due process claim; (3) Magistrate Judge Baxter erred by not acting on Plaintiff's suggestion that the Court contact the an Assistant Attorney General for the State of New York to confirm that Plaintiff's conspiracy claim has merit; and (4) Magistrate Judge Baxter erred by overlooking the record evidence that Defendants Bellnier, Fischer, Lira, and Tynon were personally involved in the constitutional violations alleged. (Id. at 1-15.) In addition, in support of his Objections, Plaintiff attempts to submit 14 pages of exhibits. (Dkt. No. 111, at Attach. 2.)

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).*fn3 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.*fn4

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.*fn5 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.*fn6 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.*fn7

After conducing 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. Legal Standard Governing a Motion to Dismiss pursuant to 28 U.S.C. § 1915(g)

Because Magistrate Judge Baxter correctly recited the legal standard governing motions to dismiss pursuant to 28 U.S.C. § 1915(g) in his Report-Recommendation, that standard is incorporated by reference in this Decision and Order, which is intended primarily for the review of the parties. (Dkt. No. 110 at 6-7.)

C. Legal Standard Governing a Motion for Summary Judgment

Because Magistrate Judge Baxter correctly recited the legal standard governing motions for summary judgment in his Report-Recommendation, that standard is incorporated by reference in this Decision and Order, which again is intended primarily for the review of the parties. (Dkt. No. 110 at 7-9.)

III. ANALYSIS

Even when construed with the utmost of special liberality, Plaintiff's Objection merely reiterates the same arguments Plaintiff previously presented in his prior submissions to the Court. (Compare Dkt. No. 111 [Plf.'s Obj.] with Dkt. No. 106 [Plf.'s Opp'n Memo. of Law].) As explained above in Part II.A. above of this Decision and Order, when an objection merely reiterates the same arguments made by the objecting party in its original papers, the Court subjects that portion of the Report-Recommendation challenged by those arguments to only a clear error review.

Here, after carefully reviewing all of the papers in this action, including Magistrate Judge Baxter's Report-Recommendation, the Court concludes that Magistrate Judge Baxter's thorough Report-Recommendation is correct in all respects.(Dkt. No. 110.) Magistrate Judge Baxter 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 the following eight brief points.First, Magistrate Judge Baxter's thorough and correct Report-Recommendation would survive even a de novo review.

Second, in his opposition memorandum of law, Plaintiff failed to respond to Defendants' arguments regarding his access-to-courts and free-flow-of-mail claims. (Compare Dkt. No. 100, Attach. 5, at 10-12 [attaching pages "8" through "10" of Defs.' Memo. of Law] with Dkt. No. 106 [Plf.'s Opp'n Memo. of Law].) As a result, Defendants' burden as to those arguments "is lightened such that, in order to succeed, [Defendants] need only show the facial merit of [their] request." Rescuecom Corp. v. Chumley, 07-CV-0690, 2011 WL 2791272, at *3 & n.4 (N.D.N.Y. July 14, 2011) (Suddaby, J.). Here, for the reasons stated in Defendants' memorandum of law, the Court finds that Defendants have met this lightened burden. (Dkt. No. 100, Attach. 5 at 10-12, 16-18.) In any event, even if the Court were to subject Defendants arguments regarding Plaintiff's access-to-courts and free-flow-of-mail claims to the more rigorous scrutiny appropriate for a contested motion, the Court would find that those argument survive that scrutiny.

Third, the Court reaches the same failure-to-respond conclusion with regard to Plaintiff's retaliation claim. Moreover, even if Plaintiff's opposition papers could somehow be liberally construed as asserting an argument with regard to that claim, the Court would find that Plaintiff's own arguments concede that it was the unidentified "master impostor," not Plaintiff's exercise of an First Amendment right, that caused Defendant Caron to file the misbehavior reports in question. (See, e.g., Dkt. No. 106, at 9, 14 [attaching pages "ix" and "xiv" of Plf.'s Opp'n Memo. of Law].)

Fourth, Plaintiff's claims against Defendants Bellnier, Fischer, Lira, and Tynon are dismissed on the alternative ground that, even when construed with the utmost of special liberality, Plaintiff's Amended Complaint fails to allege facts plausibly suggesting that those Defendants were personally involved in any of the constitutional violations alleged. The Court reaches this conclusion for the reasons stated in Defendants' memorandum of law. (Dkt. No. 100, Attach. 5 at 18-19.) The Court notes that Plaintiff's Amended Complaint contains only three allegations regarding Defendants Bellnier, Fischer, Lira, and Tynon: (1) that Plaintiff filed his two grievances with Defendant Fischer, the first of which was "notably filed without any difficulty," but the second of which went missing (Dkt. No. 15 at 8); (2) that Plaintiff sent additional "writings" to Defendants Fischer, Bellnier, Lira, and Ranieri asking them to "please stop psychologically humiliating [him] with insurmountable S.H.U. sanctions" (id. at 9); and (3) that Defendants Lira and Fischer received Plaintiff's complaints, but failed to respond. (Id. at 11.) At most, these allegations allege that Defendants Fischer, Bellnier, Lira, and Tynon failed to respond to Plaintiff's complaints. It is well settled, however, that supervisory officials (like these four Defendants) cannot be found personally involved in an alleged constitutional deprivation simply because they failed to respond to a plaintiff's complaint.*fn8 The Court also notes that Plaintiff's entire response to this failure-to-state-a-claim argument is based on record evidence, which may not be considered on such a motion.*fn9

Fifth, Plaintiff due process and conditions-of-confinement claims are dismissed on the alternative ground that his response to Defendants' failure-to-state-a-claim arguments regarding those claims are also based entirely on record evidence, which may not be considered on such a motion. See, supra, note 9 of this Decision and Order.

Sixth, the Court accepts Defendants' failure-to-exhaust argument on the alternative ground that, even if Plaintiff did submit a second grievance that was subsequently not filed, he had the ability--and the duty--to file an appeal regarding the non-processing of that grievance.*fn10

Seventh, because the documents submitted by Plaintiff in support of his Objection were not submitted to Magistrate Judge Baxter for his consideration when addressing Defendants' motion, the Court declines to permit Plaintiff to so supplement the record during his Objection. Plaintiff's grievance of September 14, 2009 (Dkt. No. 111, Attach. 2, at 1-8) was not included in the record evidence submitted by Plaintiff to Magistrate Judge Baxter (see Dkt. No. 106, Attach. 3, at 1-56).*fn11 Plaintiff's letter of August 9, 2010, to Brian Fischer (Dkt. No. 111, Attach. 2, at 9-13), was not included in the record evidence submitted by Plaintiff to Magistrate Judge Baxter (see Dkt. No. 106, Attach. 3, at 1-56).*fn12 Plaintiff's "Undisputed Sworn Affidavit of Material Fact" dated September 6, 2011 (Dkt. No. 111, Attach. 2, at 13) was not included in the record evidence submitted by Plaintiff to Magistrate Judge Baxter (see Dkt. No. 106, Attach. 3, at 1-56).

Finally, Plaintiff's "Lits of dated Responses or Responses from (D.O.C.S.) Central Office" dated December 30, 2011 (Dkt. No. 111, Attach. 2, at 14) was not included in the record evidence submitted by Plaintiff to Magistrate Judge Baxter (see Dkt. No. 106, Attach. 3, at 1-56). Indeed, it post-dated the date on which he submitted that response (October 24, 2011), by more than two months.

The Second Circuit recognizes that the decision of whether or not to accept such evidence rests in the sound discretion of the district court.*fn13 In exercising that discretion, a district court should considers factors such as efficiency and fairness.*fn14 With regard to the efficiency consideration, the Court finds that permitting Plaintiff (during his Objection) to adduce evidence that was not presented before Magistrate Judge Baxter would be an inefficient use of judicial resources, and indeed would frustrate the purpose of the Magistrates Act."*fn15 With regard to the fairness consideration, the Court finds that the relevant factors weigh decidedly against granting him permission to amend the record.*fn16 For example, Plaintiff has had a full and fair opportunity to be heard on his claims, including a full and fair opportunity to (1) conduct discovery in this matter, and (2) respond with evidence and argument to Defendants' motion for summary judgment.*fn17 Defendants are entitled to have their motion decided on a level playing field, based on evidence and arguments to which they could properly reply.

Eighth, and finally, because Plaintiff already filed an Amended Complaint, the Court need not, and does not, afford him a further opportunity to amend his procedural due process claim and free-flow-of-mail claim before dismissing them for failure to state a claim upon which relief can be granted. See 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.).*fn18

ACCORDINGLY, it is

ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 110) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendants' motion to dismiss for failure to state a claim and/or motion for summary judgment (Dkt. No. 100) are GRANTED; and it is further

ORDERED that Plaintiff's Amended Complaint (Dkt. No. 15) is DISMISSED in its entirety.


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