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Jean Azor v. New York City Department of

October 9, 2012

JEAN AZOR, PLAINTIFF,
v.
NEW YORK CITY DEPARTMENT OF CORRECTIONS, OFFICER PELUSO, SHIELD # 10657, OFFICER LIGHTFOOT, SHIELD # 4937, OFFICER R. ANTHONY, SHIELD # 12032, OFFICER T. CHADBURN, SHIELD # 15419, CAPTAIN N. LANGFORD, SHIELD #1480, DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

DOCUMENT

ORDER ADOPTING REPORT AND RECOMMENDATION

On March 15, 2010, pro se Plaintiff Jean Azor ("Azor") commenced this 42 U.S.C. § 1983 action alleging that the defendants violated his constitutional rights when they assaulted him on February 3, 2010, in the holding pen area on Rikers Island. (ECF No. 2.) On March 30, 2010, the Court referred the case to Magistrate Judge Kevin Nathaniel Fox. (ECF No. 5.) On March 27, 2012, Azor filed a motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 52.) On May 30, 2012, Magistrate Judge Fox issued a Report and Recommendation that the Court deny Azor's motion for summary judgment. ("R&R," ECF No. 53.) For the reasons that follow, the Court adopts Magistrate Judge Fox's findings and recommendations and denies Azor's motion for summary judgment.

BACKGROUND

A.Facts*fn1

Azor claims that the defendants violated his Eighth Amendment constitutional rights through the use of excessive force against him during an incident that occurred on February 3, 2010, while Azor was waiting for a parole hearing on Rikers Island. The incident occurred in a search pen at the Donald Cranston Judicial Center, and involved Azor and Corrections Officers Corey Lightfoot, Michael Peluso, and Robert Anthony. Following the incident, the Department of Corrections ("DOC") Investigations Division issued an investigation report about the incident ("DOC Report"). The report identified several, differing accounts of the incident at issue in statements submitted by Azor, the corrections officers involved, and two other inmates who witnessed the incident. The DOC Report concluded that no charges should be brought against the corrections officers and that the case be closed.

In his motion for summary judgment, Azor claims that the corrections officers violated DOC policy by placing him in a cell with gang members, which precipitated his resistance. Azor contends the corrections officers' response was disproportionate and in violation of his rights- notwithstanding the fact that two of the officers had to be hospitalized as a result of Azor's conduct.*fn2

B.Magistrate Judge Fox's R&R

On May 30, 2012, Magistrate Judge Fox issued an R&R recommending that Azor's motion for summary judgment be denied. (R&R at 8.) Magistrate Judge Fox found that the evidence submitted by Azor included different versions of the events that occurred on February 3, 2010, thereby creating a genuine dispute of material fact. (Id. at 7--8.)

Azor filed timely objections to the R&R on August 6, 2012. (ECF No. 57.) On September 18, 2012, Azor filed a motion for leave to file supplemental objections to the R&R. (ECF No. 58.) The Court has reviewed the R&R and Azor's objections.

DISCUSSION

I.STANDARD OF REVIEW

A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. ยง 636(b)(1). When a timely objection is made to the magistrate's recommendations, the Court is required to review the contested portions de novo. Id.; Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The Court "may adopt those portions of the [R&R] to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000). Moreover, "[w]hen a party makes only conclusory or general objections . . . the Court will review the Report strictly for clear error. . . . Objections to a Report must be specific and clearly aimed at particular findings in the magistrate judge's proposal." Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009) (citations omitted). While the Court is cognizant of Azor's ...


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