United States District Court, N.D. New York
CHAMMA K. BRANDON, Plaintiff,
DR. GLEN SCHROYER, et al., Defendants.
DECISION & ORDER
J. McAVOY, Senior United States District Judge.
pro se action brought pursuant to 42 U.S.C. §
1983 was referred to the Hon. David E. Peebles, Chief United
States Magistrate Judge, for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
July 13, 2016 Report and Recommendation, Dkt. No. 136,
Magistrate Judge Peebles recommends that defendant
Schroyer's second motion for summary judgment (Dkt. No.
100) be granted, and that plaintiff's remaining
retaliation claim asserted against defendant Schroyer be
dismissed. Plaintiff filed objections to the recommendation.
Dkt. No. 140.
STANDARD OF REVIEW
objections to a magistrate judge's report and
recommendation are lodged, 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.” See 28 U.S.C.
§ 636(b)(1); see also United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The Court must
make a de novo determination to the extent that a
party makes specific objections to a magistrate's
findings.). “[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.” Machicote v. Ercole, 2011 WL
3809920, at * 2 (S.D.N.Y., Aug. 25, 2011)(citations and
interior quotation marks omitted); DiPilato v. 7-Eleven,
Inc., 662 F.Supp.2d 333, 340 (S.D.N.Y. 2009)(same).
or conclusory objections, or objections which merely recite
the same arguments presented to the magistrate judge, are
reviewed for clear error. Farid v. Bouey, 554
F.Supp.2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v.
N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009).
After reviewing the report and recommendation, the Court may
“accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28
U.S.C. § 636(b).
Court has considered plaintiff's objections and completed
a de novo review of the those portions of Magistrate
Judge Peebles's Report and Recommendation to which
specific objections are made.
challenges Magistrate Judge Peebles's conclusion that
“none of the grievances that are included in the record
were ever addressed specifically to or against defendant
Schroyer” and, therefore, the retaliation claim fails
on the causation element. Rep. Rec. p. 15. On this issue,
Magistrate Judge Peebles stated:
Moreover, as I noted in my prior report and recommendation,
aside from plaintiff's sheer conjecture, there exists no
evidence in the record from which a reasonable factfinder
could conclude that defendant Schroyer was aware of the
existence of plaintiff's grievances. See Dkt.
No. 99 at 23. This fact alone is sufficient to warrant
dismissal of plaintiff's retaliation claim. See Perez
v. Keysor, No. 10-CV-0518, 2013 WL 5493932, at *15
(N.D.N.Y. Sept. 30, 2013) (finding a "failure to prove
[defendants'] knowledge of [plaintiff's] grievances .
. . even in light of temporal proximity, is fatal to
contends that this conclusion is erroneous because he filed a
grievance on September 15, 2012 in which he complained that
he was being forced to eat “what I'm medically
prescribed not to eat by the medical staff at Clinton County
jail. I have high blood pressure amongst other medical
conditions which according to the doctor my diet must be
altered. A food tray containing substances which I'm not
supposed to eat due to its cholesterol contents was not
substituted for another snack though my file shows I'm on
various restrictive diets. ” Pl. Obj., p. 9 (quoting
Dkt. No. 17, at p. 83). Plaintiff argues that while defendant
Schroyer was not specifically named in the grievance, an
inference can be drawn that defendant Schroyer would have
become aware of this grievance because plaintiff referenced
that his restricted diet is “according to the
doctor” and that defendant Schroyer was the doctor who
prescribed plaintiff's low-cholesterol diet.
contention that an inference could be drawn that defendant
Schroyer learned of the grievance because it references a
medically prescribed diet ordered by “the doctor”
is wholly speculative, and provides an insufficient basis to
defeat summary judgment. On summary judgment, a court must
“construe the facts in the light most favorable to the
nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Caronia
v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir.
2013) (citation and quotation marks omitted). Further,
pro se litigants' submissions “must be
construed liberally and interpreted ‘to raise the
strongest argument they suggest.'” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006)). However, “a party may not rely on mere
speculation or conjecture as to the true nature of the facts
to overcome a motion for summary judgment.” Hicks
v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal
citations omitted); see Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)(The
nonmoving party cannot defeat summary judgment by
“simply show[ing] that there is some metaphysical doubt
as to the material facts.”); Kulak v. City of
N.Y., 88 F.3d 63, 71 (2d Cir. 1996) (“[C]onclusory
statements, conjecture, or speculation by the party resisting
the motion will not defeat summary judgment.”);
Bryant v. ...