United States District Court, Northern District of New York
January 23, 2015
THEODORE SIMPSON, Plaintiff,
BEN OAKES, Physician Assistant, Southport Corr. Facility; C. FELKER, Nurse Admin., Southport Corr. Facility; DR. H. SILVERBERG, M.D., Great Meadow Corr. Facility; DR. KARANDY, M.D.; Great Meadow Corr, Facility; and J. COLLINS, Nurse Admin., Great Meadow Corr. Facility, Defendants.
THEODORE SIMPSON, 96-A-3862 Plaintiff, Pro Se.
HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants.
ADRIENNE J. KERWIN, ESQ.Assistant Attorney General.
DECISION AND ORDER
GLENN T. SUDDABY, United States District Judge
Currently before the Court, in this prisoner civil rights action filed pro se by Theodore Simpson (“Plaintiff”) against the five above-captioned correctional employees (“Defendants”), are United States Magistrate David E. Peebles’ Report-Recommendation recommending Defendants’ motion for summary judgement be granted and that Plaintiff’s Amended Complaint be dismissed, and Plaintiff’s Objection thereto. (Dkt. Nos. 129, 134.) For the reasons set forth below, the Report-Recommendation is accepted and adopted, Defendants’ motion is granted, and Plaintiff’s Amended Complaint is dismissed.
I. RELEVANT BACKGROUND
Because this Decision and Order is intended primarily for the review of the parties, the Court will not recite this action’s procedural history, those of Plaintiff’s claims that were still pending when Defendants filed their motion for summary judgment, and the parties’ briefing on that motion. Rather, the Court will respectfully refer the reader to Magistrate Judge Peebles’ Report-Recommendation, which accurately conveys that information.
II. STANDARD OF REVIEW
When a specific objection is made to a portion of a magistrate judge's report-recommendation, 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. Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks omitted).
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; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). 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 magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
Based on a careful review of this matter, the Court can find no error with Magistrate Judge Peebles’ thorough Report-Recommendation. (Dkt. No. 129.) Magistrate Judge Peebles employed the proper legal standards, accurately recited the facts, and reasonably applied the law to those facts. (Id.) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. The Court would add only two brief points.
First, despite receiving a 60-day extension by which to file his Objections, Plaintiff filed Objections that, even when construed with the utmost of liberality, largely fail to specifically challenge Magistrate Judge Peebles’ Report-Recommendation, or assert any arguments that were not asserted in his underlying opposition memorandum of law. (Compare Dkt. No. 134 [Plf’s Objections] with Dkt. No. 129 [Report-Recommendation] and Dkt. No. 125 [Plf’s Opp’n Memo. of Law].) As a result, those portions of Magistrate Judge Peeble’s Report-Recommendation are subject to merely a clear error review, which they easily survive under the circumstances.
Second, the remainder of the Report-Recommendation survives a de novo review. For example, to the extent that Plaintiff argues, in his Objections, that he was prejudiced by Defendants’ failure to assert their failure-to-exhaust argument in prior submissions to the Court, Plaintiff is advised that Defendants asserted an exhaustion defense in their Answer to his Amended Complaint and therefore preserved that affirmative defense. (See Dkt. No. 80, at ¶ 14.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 129) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 117) is GRANTED; and it is further
ORDERED that Plaintiffs Amended Complaint (Dkt. No. 5) is DISMISSED in its entirety.