SHAUN PAUL PORTER Amherst, New York, Plaintiff, Pro Se.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, COLLEEN D. GALLIGAN, ESQ., Assistant Attorney General, Counsel for Defendant.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this pro se prisoner civil rights action filed by Shaun Paul Porter ("Plaintiff") against Correctional Officer E. Young ("Defendant"), are Defendant's motion for summary judgment, and United States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Defendant's motion be granted. (Dkt. Nos. 45, 54.) Neither party filed an objection to the Report-Recommendation and the time in which to do so has expired. For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, Defendant's motion is granted, and Plaintiff's Complaint is dismissed.
I. RELEVANT BACKGROUND
Generally, in his Complaint, Plaintiff claims that, while he was incarcerated at Oneida County Correctional Facility in February of 2011 in Rome, New York, Defendant deliberately subjected him to unsafe working conditions, in violation of the Eighth Amendment. (Dkt. No. 1) More specifically, Plaintiff alleges that (1) Defendant ordered him to clean an elevated wallmounted fan in his dormitory, (2) Plaintiff complained that the fan was too high to reach, (3) Defendant directed him to stand on a chair, (4) Plaintiff complied with the directive out of fear that he would be given a disciplinary ticket for failing to obey a direct order if he did not comply, and (5) the chair caused Plaintiff to fall and injure his back. ( Id. )
Generally, in its motion for summary judgment, Defendant asserts the following two arguments: (1) based on the current record, Plaintiff has failed to establish an Eighth Amendment unsafe-working-conditions claim because, even assuming that Defendant ordered Plaintiff to use a chair, no evidence exists that the chair was defective or broken, or that Plaintiff ever expressed to Defendant any concern that his use of the chair would be dangerous; and (2) in any event, based on the current record, Defendant is protected from liability as a matter of law by the doctrine of qualified immunity. (Dkt. No. 45, at Points I-II.) For a more detailed recitation of Defendant's argument, the Court refers the reader to Defendant's motion in its entirety. ( Id. )
Generally, in his Report-Recommendation, Magistrate Judge Baxter recommends that Defendant's motion be granted, and that Plaintiff's Complaint be dismissed, because (1) there was nothing about standing on the chair to clean the fan that constituted an inherently unsafe and dangerous working condition, (2) in any event, there is no evidence establishing that Defendant was aware of any such unsafe working condition, and (3) for example, Plaintiff admits that he failed to express any concern about using the chair after he complained that the fan was too high. (Dkt. No. 54.)
Familiarity with the claims and allegations asserted in Plaintiff's Complaint, the arguments asserted in Defendant's motion, and the findings and conclusions stated in Magistrate Judge Baxter's Report-Recommendation, are assumed in this Decision and Order, which is intended primarily for the review of the parties.
II. APPLICABLE LEGAL STANDARDS
A. Standard Governing Review of 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 ...