United States District Court, N.D. New York
January 21, 2015
PATRICK GUILLORY, Plaintiff,
NANCY HAYWOOD; MAUREEN BOLL; TIMOTHY MAHER; MICHAEL GRAZIANO; J. DOBBS; POTTER; SGT. DONOVAN; and GOPPERT, Captain, Defendants.
PATRICK GUILLORY, Clinton Correctional Facility, Dannemora, New York, Plaintiff pro se.
LAURA A. SPRAGUE, AAG, OFFICE OF THE NEW YORK, STATE ATTORNEY GENERAL, The Capitol, Albany, New York, Attorneys for Defendants.
MAE A. D'AGOSTINO, District Judge.
Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision, commenced this action pro se under 42 U.S.C. § 1983. See Dkt. No. 24. Upon initial review, Plaintiff's complaint was liberally construed to assert the following causes of action: (1) denial of access to the courts in violation of the First Amendment and in retaliation for his litigation and complaints; (2) interference with Plaintiff's outgoing legal mail in violation of the First Amendment and in retaliation for his litigation and complaints; (3) search of his cell and confiscation of his property in retaliation for his litigation and complaints; and (4) denial of equal protection in violation of the Fourteenth Amendment. See Dkt. No. 11 at 6. The Court dismissed Plaintiff's claims for money damages brought against Defendants in their official capacities and also dismissed Plaintiff's equal protection claim as conclusory. See id. Thereafter, Plaintiff was granted leave to amend his complaint to substitute Defendants Donovan and Goppert for Defendants John Doe Number 1 and John Doe Number 2. See Dkt. No. 23.
On April 30, 2014, Defendants filed a motion to dismiss. See Dkt. No. 37. In a December 11, 2014 Order and Report-Recommendation, Magistrate Judge Dancks recommended that the Court grant in part and deny in part Defendants' motion. See Dkt. No. 48. Specifically, Magistrate Judge Dancks recommended that the Court dismiss the following claims: (1) First Amendment denial of access to courts, interference with legal mail, improper opening of legal mail, and retaliation claims against Defendants Maher, Dobbs, and Goppert for failure to exhaust; (2) First Amendment denial of access to courts claim against Defendants Potter and Graziano for failure to state a claim; (3) First Amendment retaliation claim against Defendant Potter arising out of the destruction of the microwave oven in Plaintiff's housing unit; (4) First Amendment claim for retaliation against Defendant Graziano for failure to state a claim; (5) supervisory liability claim against Defendant Graziano for failure to state a claim; (6) supervisory liability claims against Defendant Haywood for failure to state a claim; (7) supervisory liability claims against Defendant Boll for generally failing to remedy wrongs, creating and allowing to continue customs and policies under which under which constitutional practices occur, and failure to supervise and monitor subordinates for failure to state a claim; (8) supervisory liability claim against Defendant Boll in connection with Plaintiff's denial of access to court claims against Defendants Potter and Graziano relating to the May 6, 2013, law library incident for failure to state a claim; (9) supervisory liability claim against Defendant Boll with regard to Plaintiff's denial of access to court, interference with legal mail, and improper opening of legal mail claims against Defendants Maher, Dobbs, and Goppert in connection with the amended complaint withheld from mailing to the court, for failure to state a claim; and (10) retaliation claims against Defendants Haywood and Boll for failure to state a claim. See Dkt. No. 48 at 42-43. Further, the report recommended that the Court deny Defendants' motion as to the following claims: (1) Plaintiff's retaliation claim against Defendant Potter arising out of the May 6, 2013, law library incident; (2) Plaintiff's retaliation claim against Defendant Donovan with regard to taking Plaintiff's legal papers and kosher food; and (3) Plaintiff's supervisory liability claim against Defendant Boll with regard to Plaintiff's retaliation claim against Defendant Potter regarding the May 6, 2013, law library incident. See id. Finally, Magistrate Judge Dancks recommended that the Court grant Plaintiff leave to amend with regard to all of the claims dismissed without prejudice for failure to exhaust his administrative remedies. See id. Neither party objected to the Order and Report-Recommendation.
When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a " de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, when a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge, " the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After 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).
A litigant's failure to file objections to a magistrate judge's report and recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure). See Dkt. No. 42.
When considering a Rule 12(b)(6) motion, the court accepts the material facts alleged in the complaint as true, drawing all inferences in favor of the non-moving party. See, e.g., Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003) (citing Patel v. Contemporary Classics of Beverley Hills, 259 F.3d 123, 126 (2d Cir. 2001)). The court is not bound, however, to accept as true legal conclusions with the appearance of factual statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The moving party has the heavy burden of showing that the plaintiff is not "entitled to offer evidence in support [his] claims." Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (citations omitted). Thus, the court should only dismiss a 12(b)(6) motion where the plaintiff provides no "plausible" basis to support his claims. See Twombly, 550 U.S. at 556-57. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
When a party proceeds pro se, the court must liberally construe his pleadings, holding them to a standard less stringent than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). If a pro se plaintiff's complaint alleges civil rights violations, the court must construe his pleadings with "particular generosity." Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003) (quoting Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002)). Further, when a pro se plaintiff faces a motion to dismiss, the court may consider "materials outside the complaint to the extent they are consistent with the allegations in the complaint." Donhauser v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y. 2004).
Having reviewed the thorough and well-reasoned Order and Report-Recommendation and the parties submissions, the Court finds that Magistrate Judge Dancks correctly determined that the Court should grant in part and deny in part Defendants' motion to dismiss the amended complaint. Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' Order and Report-Recommendation is ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Defendants' motion to dismiss (Dkt. No. 37) is GRANTED in part and DENIED in part as set forth herein; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.