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Johnson v. Gagnon

United States District Court, N.D. New York

March 19, 2015

JOHNATHAN JOHNSON, Plaintiff,
v.
BRIAN GAGNON, DANIEL DUMAS, BRIAN GRANT, BRIAN CLARK, FRANCIS JARVIS, WENDY SEYMOUR, RICHARD LIEBFRED, JOHN TATRO, JERRY LARAMAY, REGINAL BISHOP, DONALD UHLER, DAVID ROCK, JOSEPH BELLNIER, GAYLE HAPONIK, ANTHONY ANNUCCI, MAUREEN BOLL, CARL KOENIGSMANN, JEFF MCKOY, and AARON BEANE, Defendants.

JOHNATHAN JOHNSON, Upstate Correctional Facility, Malone, New York, Plaintiff pro se.

DAVID J. SLEIGHT, AAG, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Buffalo, New York, Attorneys for Defendants.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff pro se Johnathan Johnson, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this action in New York state court pursuant to 42 U.S.C. § 1983 alleging that Defendants, nineteen DOCCS employees, violated his constitutional rights under the First and Eighth Amendments. See Dkt. No. 4. Plaintiff alleges that Defendants deprived him of his constitutional rights by, inter alia, interfering with his doctor-ordered meals, conducting cell searches, destroying legal court documents, and physically assaulting him in retaliation for his filing of grievance complaints, as well as failing to take corrective action to prevent further retaliatory conduct. See id. [1] On July 24, 2014, Defendants removed the action to this court. See Dkt. No. 1.

Defendants have moved to dismiss Plaintiff's claims against Defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 2. Defendants argue that dismissal is warranted because Plaintiff has failed to allege that the above-named defendants were personally involved in a violation of Plaintiff's constitutional rights. See id. Plaintiff opposes the motion. See Dkt. No. 6. Plaintiff has also moved to remand the action to state court. See Dkt. No. 7. Defendants oppose remand. See Dkt. No. 10.

In a Report and Recommendation dated February 26, 2015, Magistrate Judge Peebles recommended that the Court deny Plaintiff's motion to remand. Dkt. No. 12 at 3. Magistrate Judge Peebles first concluded that Defendants' removal was timely under 28 U.S.C. § 1446(b) because Defendants Leibfred, Koenigsmann, and McKoy filed the notice of removal within thirty days of being served the summons and complaint. See id. at 9-12. Magistrate Judge Peebles further determined that removal was proper because all of the Defendants consented to removal except for Defendant Grant, who has not yet been properly served. See id. at 11-12, 12 n.6. Magistrate Judge Peebles also found that remand is not mandated by the fact that Plaintiff is barred from proceeding in federal court in forma pauperis. Id. at 12 n.6.

In addition, Magistrate Judge Peebles recommended that the Court grant Defendants' partial motion to dismiss. Id. at 3. Magistrate Judge Peebles determined that Plaintiff's complaint failed to allege facts plausibly suggesting that Defendants Clark and Grant violated Plaintiff's rights. Id. at 17. Magistrate Judge Peebles additionally determined that Plaintiff failed to allege facts plausibly suggesting that Defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Keonigsmann, and McKoy were personally involved in the alleged violations of Plaintiff's constitutional rights. See id. at 17-21. Magistrate Judge Peebles recommended that Plaintiff be granted leave to amend his complaint to address the deficiencies identified in the Report and Recommendation. Id. at 23.

Plaintiff timely submitted objections to the Report and Recommendation on March 6, 2015. See Dkt. No. 13. Plaintiff's primary objection is that Magistrate Judge Peebles erred in concluding that Defendant Grant has not been properly served and that his consent was therefore not required for proper removal. See id. at 3-7. Plaintiff also contends that the allegations in his original complaint sufficiently state constitutional violations by each defendant and that amendment is thus unnecessary. See id. at 8.

II. DISCUSSION

A. Standard of Review

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) (2006). 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) (2006).

B. Motion To Remand

Plaintiff argues that Magistrate Judge Peebles incorrectly determined that Defendant Grant was not properly served. See Dkt. No. 13 at 3-7. Plaintiff filed a summons and complaint with the Franklin County Clerk's Office on October 18, 2013. See Dkt. No. 1-1. On December 6, 2013, Plaintiff filed a motion for default judgment against thirteen of the defendants. See Dkt. No. 1-7. On December 13, 2013, Defendants Grant, Liebfred, Koenigsmann, and McKoy ...


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