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Artis v. Dishaw

United States District Court, N.D. New York

March 22, 2017

J. DISHAW, Defendant.


          CLARENCE LEE ARTIS, JR Plaintiff pro se.


         OF COUNSEL:

          RYAN W. HICKEY, AAG


          Mae A. D'Agostino, U.S. District Judge.


         Plaintiff 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).

         On 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, 32.

         On 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.


         A. Plaintiff's Allegations

         The 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."[1] 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.


         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). 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).

         Pursuant 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 ...

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