United States District Court, N.D. New York
THOUSAND Clinton Correctional Facility Plaintiff, pro se.
ERIC T. SCHNEIDERMAN MARIA E. LISI-MURRAY, AAG New York
Attorney General The Capitol Attorney for Defendants
MEMORANDUM-DECISION AND ORDER
D'Agostio U.S. District Judge.
August 24, 2015, Robert Thousand ("Plaintiff")
commenced the present civil rights action pursuant to 42
U.S.C. § 1983 ("Section 1983") arising out of
his confinement in the custody of the New York State
Department of Corrections and Community Supervision
("DOCCS"). See Dkt. No. 1.
complaint, Plaintiff alleged that Defendants Corrigan, Jones,
and Segovis assaulted him on January 27, 2014 while he was
confined by DOCCS at Great Meadow Correctional Facility
("Great Meadow"). See id. at ¶¶
43-48. Plaintiff alleged that Defendants Carpenter,
O'Brien, and Scarlotta knew or should have known about
the assault and failed to intervene. See id. at
¶¶ 31-39. Plaintiff also alleged that Defendants
Liberty and Prack violated Plaintiff's due process rights
during the administrative process that arose out of the
incident. See id. at ¶¶ 62-85. As a
result, Plaintiff seeks substantial monetary relief. See
id. at 22-23.
August 15, 2016, Defendants filed a motion for partial
summary judgment seeking dismissal of Plaintiff's failure
to intervene and due process claims. See Dkt. No.
30. On December 5, 2016, Magistrate Judge Baxter issued a
Report-Recommendation recommending that the Court grant
Defendants' motion. See Dkt. No. 40. On December
16, 2016, Plaintiff filed his objections to Magistrate Judge
Baxter's Report-Recommendation. See Dkt. No. 41.
before the Court is Magistrate Judge Baxter's
Report-Recommendation and Plaintiff's objections thereto.
relevant facts in this case were outlined in this Court's
October 5, 2015 Decision and Order. See Dkt. No. 5
at 4-8. Additionally, Magistrate Judge Baxter outlined the
facts in his Report-Recommendation on December 5, 2016.
See Dkt. No. 40 at 2-8. Since neither party objects
to Magistrate Judge Baxter's factual recitation, and
because it is consistent with the record before the Court, it
is adopted for purposes of this Memorandum-Decision and
a pro se case, the court must view the submissions
by a more lenient standard than that accorded to 'formal
pleadings drafted by lawyers.'" Govan v.
Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2007)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972))
(other citations omitted). The Second Circuit has opined that
the court is obligated to "'make reasonable
allowances to protect pro se litigants'"
from inadvertently forfeiting legal rights merely because
they lack a legal education. Govan, 289 F.Supp.2d at
295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d
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)(C).
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 recommendation made by the magistrate judge." 28
U.S.C. § 636(b)(1)(C).
judgment is appropriate where there exists no genuine issue
of material fact and, based on the undisputed facts, the
moving party is entitled to judgment as a matter of
law.'" Salahuddin v. Goord, 467 F.3d 263,
272 (2d Cir. 2006) (quoting D'Amico v. City of New
York, 132 F.3d 145, 149 (2d Cir. 1998)) (other citations
omitted). When analyzing a summary judgment motion, the court
"'cannot try issues of fact; it can only determine
whether there are issues to be tried.'" Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36-37 (2d Cir.
1994) (quotation and other citations omitted). Moreover, it
is well-settled that a party opposing a motion for summary
judgment may not simply rely on the assertions in its
pleading. See Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (quoting Fed.R.Civ.P. 56(c), (e)).
assessing the record to determine whether any such issues of
material fact exist, the court is required to resolve all
ambiguities and draw all reasonable inferences in favor of
the nonmoving party. See Chambers, 43 F.3d at 36
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986))
(other citations omitted). Where the non-movant either does
not respond to the motion or fails to dispute the
movant's statement of material facts, the court may not
rely solely on the moving party's Rule 56.1 statement;
rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5
(2d Cir. 2003) (holding that not verifying in the record the
assertions in the motion for summary judgment "would
derogate the truth-finding functions of the judicial process
by substituting convenience for facts").
Exhaustion of Administrative Remedies
Prison Litigation Reform Act ("PLRA") states that
"[n]o action shall be brought with respect to prison
conditions under section 1979 of the Revised Statutes of the
United States (42 U.S.C. § 1983), or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted." 42 U.S.C. § 1997e(a).
This exhaustion requirement applies to all suits brought by
inmates regarding aspects of prison life. See Porter v.
Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust
all available administrative remedies even if they are
seeking only money damages that are not available in prison
administrative proceedings. Giano v. Goord, 380 F.3d
670, 675 (2d Cir. 2004), abrogated on other grounds by
Ross v. Blake, 136 S.Ct. 1850 (2016). The failure to
exhaust is an affirmative defense that must be raised by the
defendants and, as such, it is the defendants' burden to