MICHAEL GARCIA, 04-A-1214
Plaintiff, Romulus, New York, Pro Se
ADRIENNE J. KERWIN, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York, Albany, New York, Counsel for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this pro se prisoner civil rights action filed by Michael Garcia ("Plaintiff") against the above-captioned correctional officials ("Defendants"), are the following: (1) Defendants' motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted (Dkt. No. 13); (2) United States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Defendants' motion be granted in part and denied in part (Dkt. No. 17); and (3) Plaintiff's Objections to the Report-Recommendation (Dkt. No. 18). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendants' motion is granted in part and denied in part; Plaintiff's First Amendment claim of retaliation is dismissed; his official-capacity claims are dismissed; however, his Eighth Amendment claims for excessive force and deliberate indifference to serious medical needs are not dismissed.
I. RELEVANT BACKGROUND
Plaintiff filed his Complaint on June 7, 2012. (Dkt. No. 1.) Generally, in his Complaint, Plaintiff alleges that Defendants violated his constitutional rights in the following manner, on or about June 9, 2011: (1) Defendants Furnia and "Does" physically assaulted him in violation of the Eighth Amendment; (2) Defendant Does denied him medical treatment for his injuries in violation of the Eighth Amendment; and (3) Defendant Furnia retaliated against Plaintiff for succeeding on two prior misbehavior reports in violation of the First Amendment. ( Id. )
On December 7, 2012, Defendants filed their motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 13.) Generally, in their motion, Defendants argue that (1) while Plaintiff's Complaint is difficult to understand, it appears to attempt to assert a claim of excessive force and delayed medical care, and (2) Plaintiff's vague and deficient allegations have precluded Defendants from being able to defend themselves. ( Id. ) For a more detailed recitation of Defendants' argument, the Court refers the reader to the motion to dismiss in its entirety. ( Id. )
On March 21, 2013, Magistrate Judge Baxter issued a Report-Recommendation recommending that Defendants' motion be granted in part and denied in part. (Dkt. No. 17.) Generally, in his Report-Recommendation, Magistrate Judge Baxter found as follows: (1) Plaintiff has alleged facts plausibly suggesting Eighth Amendment claims for excessive force and deliberate indifference to serious medical needs; (2) however, to the extent that Plaintiff is attempting to sue Defendants for damages in their official capacities, he is barred by the Eleventh Amendment from doing so; (3) moreover, Plaintiff had not alleged facts plausibly suggesting a First Amendment claim of retaliation (because of the failure to allege that Plaintiff engaged in protected activity by succeeding in one or more disciplinary proceedings, or that Defendant Furnia subsequently took adverse action against Plaintiff because of that protected activity). ( Id. at Parts III, IV and V.) Familiarity with the grounds of Magistrate Judge Baxter's Report-Recommendation is assumed in this Decision and Order, which is intended primarily for review by the parties.
On April 1, 2013, Plaintiff filed a one-page letter referencing a "written objection on the motion to dismiss... claims base[d] on retaliation." (Dkt. No. 18, at 1.) That letter attached two exhibits: (1) an inmate misbehavior reported dated January 11, 2011, reported by C.O. W. Kiroy and filed by C.O. J. Rushford, together with a disciplinary hearing disposition dated January 20, 2011, reviewed by Lt. Snow, and filed by "Lt. Willis" [sp.], finding Plaintiff not guilty of the charges; and (2) a disciplinary hearing disposition dated April 25, 2011, filed by Lt. Kelley, finding Plaintiff not guilty of two charges but finding him guilty of a third charge. ( Id. at 2-9.)
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 reportrecommendation, 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). 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.
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. 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. 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. 
After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the ...