United States District Court, N.D. New York
FRANK J. POVOSKI, JR., Plaintiff,
DALE ARTUS, et al., Defendants.
FRANK J. POVOSKI, Plaintiff pro se, Great Meadow Correctional Facility, Comstock, NY.
HON. ERIC T. SCHNEIDERMAN, KEVIN P. HICKEY, ESQ., Ass't Attorney General, Attorney for Defendants, New York State Attorney General, Albany, NY.
DECISION and ORDER
DAVID N. HURD, District Judge.
Pro se plaintiff Frank J. Povoski brought this action against seventy-three defendants pursuant to 42 U.S.C. § 1983. On February 11, 2014, the Honorable David E. Peebles, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion for summary judgment be granted in part, but otherwise denied, and that plaintiff's excessive force, pendent common law claims, and certain of his failure to intervene claims remain pending for trial. Defendants timely filed objections to the Report-Recommendation. For the following reasons, the Report-Recommendation is accepted and adopted as modified below.
II. STANDARD OF REVIEW
When specific objections are made to a magistrate judge's Report-Recommendation, the court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C). On de novo review, "a district court will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance." Dallio v. Hebert , 678 F.Supp.2d 35, 41, n.1 (N.D.N.Y. 2009) (Suddaby, J.) (citing Paddington Partners v. Bouchard , 34 F.3d 1132, 1137-38 (2d Cir. 1994)). 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).
A. Pendent Common Law Claims
In their objections, defendants argue for the first time that New York Correction Law section 24 precludes plaintiff's pendent common law claims against officers and employees of the Department of Corrections and Community Supervision ("DOCCS") in their personal capacities. In his Report-Recommendation, Magistrate Judge Peebles noted:
Count 2 of plaintiff's complaint asserts pendent common law claims of assault, battery, and intentional and negligent infliction of emotional distress. Dkt. No. 1 at 18. Because defendants' motion does not address the sufficiency of those claims, I have not addressed those claims, and they remain pending for trial.
ECF No. 93, at 54, n.15.
As explained above, on de novo review, a district court will ordinarily refuse to consider arguments raised for the first time. "However, 28 U.S.C. § 636(b)(1) affords a district court the authority to consider new evidence, as well as case law presented for the first time, in making its de novo determination after an objection is filed." Dallio , 678 F.Supp.2d at 42. Mindful of the fact that if this argument had merit and it is not considered at this stage of the action, that decision may result in four pendent common law claims proceeding to trial ...