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Brandon v. Blaise

United States District Court, N.D. New York

March 23, 2017

CHAMMA K. BRANDON, Plaintiff,
v.
ERIC BLAISE and MARGARET CLANCY, Defendants.

          DECISION & ORDER

          THOMAS J. McAVOY, Senior United States District Judge.

         I. INTRODUCTION

         This 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).

         In his February 28, 2017 Report and Recommendation, Dkt. No. 159, Magistrate Judge Peebles recommends that defendants Eric Blaise and Margaret Clancy's second motion for summary judgment (Dkt. No. 122) be granted, and that plaintiff's remaining failure to protect claim asserted against these defendants be dismissed. Plaintiff filed objections to the recommendation. Dkt. No. 161.

         II. STANDARD OF REVIEW

         When 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).

         General 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).

         III. DISCUSSION

         The 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.

         As explained by Magistrate Judge Peebles, plaintiff's claim arises from a situation that occurred at the Clinton County Jail (“CCJ”) on November 18, 2012. In this regard, Magistrate Judge Peebles stated what he found to be the relevant material facts as follows:

While at the CCJ, plaintiff was housed in cell OBSV2-2 from November 10, 2012, until November 19, 2012. Dkt. No. 122-3 at 3; Dkt. No. 122-9 at 2. That placement resulted from plaintiff's involvement in a fight with another inmate. Dkt. No. 122-9 at 2; see also Dkt. No. 122-2 at 1-12. The OBSV2 unit at the CCJ consists of three cells separated by concrete walls to prevent physical interaction between inmates housed in the units. Dkt. No. 122-9 at 2-3; see also Dkt. No. 122-5 at 2-3.
Fellow inmate Terrance Somma, who plaintiff refers to in his amended complaint as "Tiny" and who he characterizes as "hostile and mentally deranged, " Dkt. No. 17 at 31, was transferred into cell OBSV2-1, which is next to the cell in which plaintiff was housed, on November 17, 2012, also due to his involvement in a fight with a fellow inmate. Dkt. No. 122-9 at 2; see also Dkt. No. 122-4 at 2-8. The decision to transfer inmate Somma into the cell adjacent to plaintiff's was made by defendant Clancy, a corrections sergeant, in her discretion. Dkt. No. 122-9 at 3; see also Dkt. No. 122-8 at 2.
On November 18, 2012, defendant Blaise, a corrections officer, instructed plaintiff to exit his cell and collect all of the food trays from the unit, and promised that, in return, plaintiff would be allowed to remain out of his cell for an extra fifteen minutes. Dkt. No. 17 at 31. Plaintiff responded by informing defendant Blaise that he had been verbally assaulted by inmate Somma the night before and stating that he "would rather not pick up [his] tray." Id. Plaintiff alleges that defendant Blaise then said to him, "[D]on't worry about him, he's a punk. Besides, from what I heard, I'm sure if I let him out, you'd kick his ass." Id.
As plaintiff was in the course of picking up trays, defendant Blaise witnessed inmate Somma spitting on plaintiff. Dkt. No. 17 at 31; Dkt. 122-7 at 2. At no point during the encounter did inmate Somma physically touch plaintiff. Dkt. No. 122-7 at 3. Following the incident, defendant Clancy spoke with inmate Somma concerning the matter and warned him ...

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