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Tolliver v. Skinner

United States District Court, S.D. New York

March 13, 2017

Eric Tolliver, Plaintiff,
v.
Skinner et al., Defendants.

          MEMORANDUM & ORDER

          DEBORAH A. BATTS, United States District Judge.

         On September 19, 2016, United States Magistrate Judge Kevin Nathaniel Fox filed a Report and Recommendation (“Report”) recommending that Eric Tolliver's (“Tolliver” or “Plaintiff”) Motion for Summary Judgment be granted in part and denied in part, and Defendants' cross-Motion for Summary Judgment be granted in part and denied in part. The Court assumes general familiarity with the events that gave rise to this litigation. The facts relevant to the present Motion, which are detailed meticulously in Judge Fox's Report, will not be restated here. For the reasons set forth below, the Court having conducted the appropriate level of review, Judge Fox's Report is ADOPTED in part, MODIFIED in part, and REJECTED in part, and the cross-Motions for Summary Judgment are GRANTED in part and DENIED in part.

         I. Objections to the Report

         A. Standard of Review

         When the magistrate judge makes a recommendation for a dispositive matter, a party may make timely objections by “serv[ing] and fil[ing] specific written objections to the proposed findings and recommendations” within “14 days after being served with a copy [of the Report].” Fed.R.Civ.P. 72(b)(2). After conducting the appropriate level of review, the Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate. 28 U.S.C. § 636(b)(1)(c); see also Local Civil Rule 72.1.

         The Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). However, “objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original [papers] will not suffice to invoke de novo review ... [such objections] would reduce the magistrate's work to something akin to a meaningless dress rehearsal.” Vega v. Artuz, No. 97 Civ. 3775 (LTS)(JCF), 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002) (citations and internal quotation marks omitted); see also Kozlow v. Horn, No. 09 Civ. 6597(LTS)(RLE), 2012 WL 2914338, at *1 (S.D.N.Y. July 17, 2012) (“When a party . . . simply reiterates his original arguments, the Court reviews the Report only for clear error.”); Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) (“Reviewing courts should review a report and recommendation for clear error where objections are . . . argued in an attempt to ‘engage the district court in a rehashing of the same arguments.'”). Where no timely objection has been made, “a district court need only satisfy itself that there is no clear error on the face of the record.” Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985).

         On a motion for summary judgment, “the district court should draw all factual inferences in favor of the non-moving party.” Wright v. Coughlin, 132 F.3d 133, 138 (2d Cir. 1998). “A district court may grant summary judgment . . . only if, viewing the facts in the light most favorable to the non-movant, there exists no genuine issue of material fact for adjudication.” Id. at 137.

         Defendants and Plaintiff both filed timely Objections, and the Court has reviewed the Report and the submissions of the Parties. The Court addresses each Objection below.

         B. Defendants' Objections

         i. Defendants' Due Process Objections

         Defendants object to the Report's denial of summary judgment to Defendants with respect to: (1) Plaintiff's claims of bias based on Defendant Malin's and Defendant Levac's intentional tampering with the record or failure to fully record the 2011 and 2013 hearings; (2) Plaintiff's claims against Defendants Levac and Prack stemming from the 2013 rehearing; and (3) Plaintiff's claims against Defendants Venettozzi and Prack based on their roles in reviewing and affirming the 2011 and 2013 hearings.

         (1) Bias Claims against Defendants Malin and Levac

         Defendants object to the Report's denial of summary judgment to Defendants Levac and Malin with respect to Plaintiff's claim that these Defendants were biased in intentionally tampering with the hearing record. (See Defs.' Objections to the Report (“Obj.”) at 20-21.) Defendants contend that the allegations of bias are purely conclusory and insufficient to create a disputed issue of material fact. (Id. at 21.) Defendants also argue that the claim fails because there is no due process requirement that a hearing be fully recorded. (Id. at 5-6.)

         Defendants' arguments were already raised in their initial motion papers, [1] and so will not be reviewed by this Court de novo. See Ortiz, 558 F.Supp.2d at 451. Nonetheless, Plaintiff's bias claims are neither conclusory nor unsupported by triable facts. Plaintiff swears, under penalty of perjury, that Defendant Malin made comments to him demonstrating prejudice at the 2011 hearing[2]; Plaintiff also swears that Defendant Levac threatened him at the 2013 hearing. And as the Report points out, even standing alone, Defendant Levac's Declaration contains internal inconsistencies. (See Report at 36-37.) Combined with the fact that portions of the hearing tapes were, in fact, inaudible or recorded over in both cases, the record contains sufficient facts from which a reasonable juror could infer bias. See Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989); Palmer v. Goss, No. 02 Civ. 5804(HB), 2003 WL 22327110, at *6 (S.D.N.Y. Oct. 10, 2003) (“Defendants also contend that [Plaintiff] has no constitutional right to a tape so ‘the fact that it was apparently defective does not rise to the level of constitutional deprivation.' Defendants' argument here rests on an inappropriate supposition at this stage of the litigation-namely that the tape was defective and not intentionally erased by corrections department employee.”), aff'd sub nom. Palmer v. Richards, 364 F.3d 60 (2d Cir. 2004).

         Although Defendants Malin and Levac deny making threatening statements to Plaintiff, deny tampering with the tapes, and deny any bias, this is precisely what makes the facts disputed and precludes Defendants' motion for summary judgment on this claim. Cf. McCormack v. Cheers, 818 F.Supp. 584, 598 (S.D.N.Y. 1993) (“Drawing all reasonable inferences in favor of the nonmoving party and recognizing that defendants may have ‘suppressed evidence' . . . this Court finds a genuine issue of material fact concerning whether Cheers was an unbiased and impartial hearing officer.”).

         Thus, the Court ADOPTS the Report's conclusion with respect to this claim.

         (2) Claims against Defendants Levac and Prack

         Defendants object to the Report's refusal to dismiss the due process claims against Defendants Levac and Prack. (Defs.' Obj. at 21-22.) Defendants contend that Plaintiff had no liberty interest implicated in the 2013 rehearing, and so had no due process rights with respect to that hearing. (Id.)

         Defendants' argument on this issue was both addressed in the Court's September 25, 2015 Memorandum and Order and reiterated in Defendants' briefs on the current Motion; thus, this issue is not subject to de novo review and will not be addressed at length here.[3] However, the Court affirms its unwillingness to adopt a rule that court-ordered rehearings[4] are somehow divorced from the liberty interests protected by the initial hearings. Defendants cite no binding precedent for this proposition, and such a rule would create obvious disincentives to follow the procedural requirements in both the initial and subsequent hearings. Although Plaintiff ultimately may be unable to prove injury arising from the 2013 hearing, “it is for the jury to decide what would have happened had different procedures been followed.” Cruz v. Edwards, No. 81 Civ. 7930 (GLG), 1985 WL 467, at *5 (S.D.N.Y. Mar. 25, 1985).

         Thus, the Court ADOPTS the Report's conclusion with respect to this issue.

         (3) Claims against Defendants Venettozzi and Prack

         Defendants object to the Report's finding that disputed issues of material fact regarding the personal involvement of Defendants Venettozzi and Prack preclude granting summary judgment to these Defendants. (Defs.' Obj. at 22-24.)

         Here, too, the objections constitute a rehashing of the arguments set forth in Defendants' motion papers, see Defs.' MSJ at 17-18; Defs.' Opp'n at 22, and thus do not merit de novo review. See Vega, 2002 WL 31174466, at *1. Nevertheless, as the Report discusses, the Second Circuit recently reaffirmed that “[a] plaintiff may establish such personal involvement by making any one of five showings (the ‘Colon factors'), ” including by showing that “the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong.” Warren v. Pataki,823 F.3d 125, 136 (2d Cir. 2016). This remains the law in this Circuit, absent a Circuit decision otherwise. Therefore, when Plaintiff swore that Defendant Prack was informed of the constitutional deficiency but failed to correct it, [5] this was sufficient to create a triable issue as to Prack's personal involvement. See Williams v. Smith,781 F.2d 319, 324 (2d Cir. 1986) (Plaintiff “expressly claim[ing] that [Defendant] affirmed his conviction on administrative appeal” sufficient to allege personal involvement); Johnson v. Coombe,156 F.Supp.2d 273, 278 (S.D.N.Y. 2001) (sufficient personal involvement alleged where Defendant “presided over an appeal that confirmed th[e] deprivation . . . [and] allege[d] a formal appeals process through which both defendants were on notice.”); Gilbert v. Selsky,867 F.Supp. 159, 166 (S.D.N.Y. 1994) (“If a supervisory official learns of a violation through a report or an appeal, but fails to remedy the wrong, that may constitute a ...


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