United States District Court, N.D. New York
CLARENCE LEE ARTIS, JR Plaintiff pro se.
OF THE NEW YORK STATE ATTORNEY GENERAL Attorneys for
W. HICKEY, AAG
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge.
pro se Clarence Lee Artis, Jr. commenced this action
pursuant to 42 U.S.C. § 1983, alleging that Defendant
and others committed several civil rights violations during
his confinement at the Upstate Correctional Facility
("Upstate C.F."). Dkt. No. 1. Plaintiff also filed
an application to proceed in forma pauperis
("IFP"). Dkt. No. 2. On February 4, 2015, the Court
granted Plaintiff's IFP application, but determined that,
pursuant to 28 U.S.C. §§ 1915(e) and 1915A, the
complaint was subject to dismissal for failure to state a
claim upon which relief could be granted. Dkt. No. 8. In
light of Plaintiff's pro se status, the Court
provided Plaintiff an opportunity to file an amended
complaint. Dkt. No. 8 at 11. Plaintiff filed an amended
complaint on February 23, 2015. Dkt. No. 9. On April 1, 2015,
this Court issued a Decision and Order dismissing the
following claims for failure to state a claim upon which
relief may be granted: harassment and verbal abuse; Eighth
Amendment deliberate indifference; Eighth Amendment
conditions of confinement; Eighth Amendment excessive force;
Eighth Amendment food tampering claims against Debouchie;
First Amendment religion claims; conspiracy; and claims
against Uhler and Schneiderman. Dkt. No 11 at 17. The only
remaining claims from the amended complaint are those against
Defendant Dishaw. Dkt. No. 11 at 10-11. Plaintiff alleges
that Defendant Dishaw (1) violated Plaintiff's Eighth
Amendment right to be free from cruel and unusual punishment
when Defendant refused to provide Plaintiff with food and (2)
violated Plaintiff's First Amendment rights when
Defendant wrote a false misbehavior report against Plaintiff
in retaliation for a grievance that Plaintiff filed against
Defendant. Dkt. No. 11 (citing Dkt. No. 9 at 8).
April 22, 2016, Defendant filed a motion for summary judgment
pursuant to Fed.R.Civ.P. 56 arguing that Plaintiff (1) failed
to exhaust administrative remedies, (2) failed to establish a
First Amendment retaliation claim, (3) failed to establish an
Eighth Amendment food tampering claim, and (4) Defendant is
entitled to qualified immunity. Dkt. No. 25-2. On May 2,
2016, Plaintiff filed a response in opposition to the
Defendant's motion. Dkt. No. 28. On May 26, 2016,
Defendant filed a reply to Plaintiff's response and
Plaintiff filed a sur-reply on June 3, 2016. Dkt. Nos. 31,
September 12, 2016, Magistrate Judge Baxter issued a
Report-Recommendation in which he recommended granting
Defendant's motion for summary judgment. Dkt. No. 33. On
October 3, 2016, Plaintiff objected to the
Report-Recommendation, alleging Defendant starved, assaulted
and harassed him, "used [him] as a fighting dog, "
and "started writing [him] up in retaliation." Dkt.
No. 34. For the following reasons, this Court agrees with
Magistrate Judge Baxter that Defendant's motion for
summary judgment should be granted.
conduct giving rise to this case occurred at Upstate C.F. On
July 9, 2014, Plaintiff got into a disagreement with
Correction Officer McQuinn regarding Plaintiff breaking his
fast for Ramadan. Dkt. No. 9 at 7. The next day, Plaintiff
was moved "back down stairs" and was "stripped
of his level." Plaintiff asserts that while being
escorted to a lower level, Defendant told Plaintiff that he
would need to assault Victor A. Deponceau, another inmate,
"if [he] wanted to eat regular trays and get extra trays
and [tobacco]." Dkt. No. 9 at 8. Plaintiff filed a
grievance against Defendant with respect to this issue on
July 10, 2014. Dkt. No. 25-12 at 7. Plaintiff alleges that
Defendant wrote a false misbehavior report on December 31,
2014 in retaliation. Dkt. No. 9 at 8. Plaintiff
claims that he filed at least three grievances against
Defendant, but stopped filing grievances because Defendant
stopped feeding him, which caused him to be "really
hungry" and lose thirty pounds. Id. Plaintiff
further alleged that by the time he filed his amended
complaint, he had lost fifty-two pounds as a result of filing
grievances against Defendant and "not wanting to be used
as a goon" for Defendant. Id.
Standard of Review
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).
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).
to Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is warranted "if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). The initial burden of showing that no genuine issue of
material fact exists, through the production of admissible
evidence, lies with the party moving for summary judgment.
Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.
2006) (citation omitted). Once the moving party has met its
burden, the nonmoving party must produce evidence
demonstrating that genuine issues of material fact remain in
dispute. Id. at 273 (citations omitted). A material
fact is genuinely in dispute "if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Finally, granting
summary judgment is ...