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Bryant v. Bouvia

United States District Court, N.D. New York

January 27, 2017

TONY BRYANT, Plaintiff,
T. BOUVIA, et al., Defendants.


          Lawrence E. Kahn U.S. District Judge.


         This matter comes before the Court following an Order and Report-Recommendation filed on October 3, 2016, by the Honorable Andrew T. Baxter, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 41 (“Report-Recommendation”). Pro se Plaintiff Tony Bryant and Defendants timely filed Objections. Dkt. Nos. 42 (“Defendants' Objections”), 43 (“Plaintiff's Objections”).


         Within fourteen days after a party has been served with a copy of a magistrate judge's report-recommendation, the party “may serve and file specific, written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b); L.R. 72.1(c). If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F.Supp.2d 301, 306-07, 306 n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . 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). Otherwise, a court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.


         A. Defendants' Objections

         Defendants object to the Report-Recommendation on two grounds. First, relying on Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), Defendants argue that Bryant's allegations about the alleged assault during the Special Housing Unit (“SHU”) escort “are so replete with inconsistencies that no reasonable juror could suspend his/her disbelief and credit the plaintiff's testimony while ignoring defendants' evidence.” Defs.' Objs. at 2. Second, Defendants claim that Bryant's deposition testimony conclusively establishes the de minimis nature of both the injuries he suffered and the force used by the SHU escort during the alleged assault. Id. at 3.

         Turning to Defendants' first objection, Jeffreys held that in the “rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, ” a district court may weigh the credibility of the plaintiff's version of events in determining whether to grant summary judgment. 426 F.3d at 554. If the plaintiff's account is so contradictory and incomplete that no reasonable juror would credit it, and if the “moving party . . . meet[s] the difficult burden of demonstrating that there is no evidence in the record upon which a reasonable factfinder could base a verdict in the plaintiff's favor, ” then the court may enter summary judgment in favor of the defendant. Id. at 554-55. As the Second Circuit later noted, “[t]he facts in Jeffreys . . . were extreme.” Matheson v. Kitchen, 515 F.App'x 21, 23 (2d Cir. 2013). “The Jeffreys plaintiff offered, for the first time in litigation, a version of events that directly contradicted the account he had previously and consistently provided, and that was inconsistent with all other evidence in the record.” Id. Further, as Judge Posner put it,

credibility issues are to be left to the trier of fact to resolve on the basis of oral testimony except in extreme cases. The exceptional category is-exceptional. For the case to be classified as extreme, the testimony sought to be withheld from the trier of fact must be not just implausible, but utterly implausible in light of all relevant circumstances.

In re Chavin, 150 F.3d 726, 728 (7th Cir. 1998).

         In his Report-Recommendation, Judge Baxter discusses several aspects of Bryant's testimony that distinguish it from the plaintiff's testimony in Jeffreys. Rep.-Rec. at 18, 20. The Court agrees with these distinctions and notes one other reason to view Jeffreys as inapposite to the facts of this case.

         One of the factual issues in dispute in Jeffreys was whether the plaintiff, in an attempt to evade capture by the police, had jumped out of the third-floor window of a school building he was burgling, or whether the police had pushed him out of the window. 426 F.3d at 551-52. The court emphasized that “[t]he record confirms, and [the plaintiff] does not dispute, that on at least three occasions he confessed to having jumped out of the third-story window of the school building.” Id. at 552. Indeed, the plaintiff “first publicly stated that he had been thrown out of a window by police officers in a conversation with Dr. Charles Bendheim of the Greenhaven Correctional Facility nine months after the incident allegedly occurred.” Id.

         Here, Bryant filed a grievance on December 12, 2012, describing the assault that allegedly took place during his escort to the SHU on November 28, 2012. Rep.-Rec. at 18-19. So unlike the plaintiff in Jeffreys, Bryant did not wait several months before complaining about the alleged assault, and he did not change his story between the incident and the filing of the grievance. True, the record contains an “Offender Injury Report dated December 19, 2012, that includes a staff notation that plaintiff ‘had been trying to get medical and didn't so made statement of staff abuse, but has since recanted it.'” Id. at 21. But Bryant has continually stated that “he was not interviewed during the grievance process, and that he never recanted his allegations.” Id. He has also affirmed that he has no recollection of signing the report, and that the signature on the form did not match his handwriting. Id. at 22. The forgery allegation is not wholly implausible. Comparison of Bryant's signature on other documents with the illegible signature on the report reveals a significant difference between the signature on the report and the other instances of his signature. Compare Dkt. No. 29-6 (“Exhibit B”) at 4-5, with id. at 11. At Bryant's deposition, Defendants' attorney appears to have suggested that Bryant's shoulder issues caused the anomalous signature on the report, Dkt. No. 29-2 (“Exhibit A”) at 96:16-20, but a rational jury would not be required to believe this theory. The forgery allegation further shows ...

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