United States District Court, N.D. New York
CHAMMA K. BRANDON, Plaintiff,
ERIC BLAISE and MARGARET CLANCY, 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).
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.
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.
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 ...