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Barrow v. Van Buren

United States District Court, N.D. New York

January 30, 2015

DIANE VAN BUREN, Deputy Commissioner; BRIAN FISCHER, Commissioner; BRYAN HILTON, Superintendent of Programs; CHARLES KELLY, JR., Superintendent, Marcy Correctional Facility; DR. FARAGO, Psychiatrist; ANTHONY DEVITTO, Executive Director of Special Programing; BOB LEWIS, OMH Therapist; LISA KALIES, Unit Chief, OMH, Residential Mental Health Unit; JOSEPH BELLNIER, Deputy Commissioner of Program Service; LUCIEN LECHAIRE, Assistant Commissioner; MAUREEN E. BOLL, Deputy Commissioner and Counsel; E. LINDQUIST, Assistant Commissioner; KAREN BALLAMY, Director, Inmate Grievance Program; JEFF MCKOY, Deputy Commissioner; MAUREEN BOSSCO, Executive Director, Central New York Psychiatric Center, Office of Mental Health; B. MCARDLE, Deputy Superintendent of Marcy Correctional Facility; DONALD SELSKEY, Deputy Commissioner, CAPTAIN HARPER, LIEUTENANT CORY; HOLANCHUCK, Defendants.

VINCENT BARROW, Five Points Correctional Facility, Romulus, New York, Plaintiff pro se.

GREGORY J. RODRIGUEZ, AAG, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany Office Albany, New York, Attorneys for Defendants.


MAE A. D'AGOSTINO, District Judge.


Plaintiff pro se Vincent Barrow, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights under the First, Eighth and Fourteenth Amendment, as well as under Title II of the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794. See Dkt. No. 50. Defendants, twenty DOCCS employees, have moved to dismiss Plaintiff's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 67. Defendants have also moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Id. In a Report-Recommendation and Order dated September 25, 2014, Magistrate Judge Hummel recommended that the Court grant in part and deny in part Defendants' 12(b)(6) motion and deny the Defendants' 12(b)(1) motion. See Dkt. No. 70.

Currently before the Court are Plaintiff's objections to Magistrate Judge Hummel's September 25, 2014 Report-Recommendation and Order. See Dkt. No. 73.


The following facts are not in dispute. At all relevant times, Plaintiff was incarcerated at Marcy Correctional Facility ("Marcy"). Dkt. No. 50 at ¶ 2. During this time, the Residential Mental Health Unit ("RMHU") at Marcy implemented "The Lewd Conduct Program" for inmates who engage in lustful and inappropriate behaviors. Dkt. No. 50 at ¶ 25. Inmates subject to the program are required to wear a control suit, which consists of a neon-green jumpsuit that has its only opening along the back, is laced with a heavy string, and is fastened with a padlock at the neck. Id. Another component of the program requires that a fiberglass sign displaying the word "Exposer" be hung above the inmate's cell door at all times. Dkt. No. 50 at ¶¶ 26, 30.

Plaintiff was required to wear the jumpsuit on several occasions following the issuance of numerous misbehavior reports for lewd conduct. See id. at ¶¶ 29-31. Plaintiff alleges that several inmates and staff have verbally insulted and ridiculed him for wearing the jumpsuit. See id. at ¶¶ 32-33. As a result, Plaintiff has refused to wear the jumpsuit out of his cell and has thus been unable to attend programs and medical appointments. See id. at ¶ 36. Contrary to Defendants' contentions that the lewd conduction program has been implemented for security measures, Plaintiff argues that the program is specifically targeted to humiliate and lower the self esteem of inmates at Marcy. See id. at ¶¶ 34-35, 43.

Plaintiff commenced this civil rights action on August 13, 2012. See Dkt. No. 1. Upon leave of court, Plaintiff filed an Amended Complaint to include a description of new events that had taken place since the complaint's initial filing. See Dkt. No. 11, 12. On April 1, 2014, Plaintiff was permitted to submit a Second Amended Complaint for review. See Dkt. No. 50. In response, Defendants moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 67. Plaintiff subsequently opposed the motion. See Dkt. No. 69.

On September 25, 2014, Magistrate Judge Hummel filed a Report-Recommendation and Order recommending that Defendants' Motion to Dismiss be granted in part and denied in part. See Dkt. No. 70 at 40. Plaintiff filed written objections on October 10, 2014, objecting to Magistrate Judge Hummel's recommendations in full. See Dkt. No. 73 at 7.


A. Standard of Review

When objections to a magistrate judge's report-recommendation and order are made, 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). If, however a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge, "the magistrate judge's recommendations are reviewed 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). The court will "ordinarily refuse to consider argument[s] that could have been, but [were] not, presented to the magistrate judge in the first instance." Mosley v. Superintendent of Collins Corr. Facility, No. 9:11-CV-1416, 2015 U.S. Dist. ...

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