United States District Court, N.D. New York
DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
matter comes before the Court following a
Report-Recommendation filed on February 28, 2017, by the
Honorable Christian F. Hummel, U.S. Magistrate Judge,
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt.
No. 51 (“Report-Recommendation”). Pro se
plaintiff Melvin Brown timely filed Objections. Dkt. No. 52
fourteen days after a party has been served with a copy of a
magistrate judge's report-recommendation, the party
“may serve and file specific, written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b); L.R. 72.1(c). If no objections are made, or if an
objection is general, conclusory, perfunctory, or a mere
reiteration of an argument made to the magistrate judge, a
district court need review that aspect of a
report-recommendation only for clear error. Barnes v. Prack,
No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F.Supp.2d 301, 306-07, 306 n.2
(N.D.N.Y. 2008); see also Machicote v. Ercole, No.
06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[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.”). “A [district]
judge . . . 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). Otherwise, a court
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.”
makes one specific objection to Judge Hummel's
Report-Recommendation: defendant Colao, the hearing officer
in this case, found Brown guilty despite the testimony of
inmate Bruce Smith, who said that C.O. Padgett “put his
fingers in inmate Brown['s] face” during the
confrontation. Objs. at 2. Brown appears to be challenging
the sufficiency of the evidence relied on to punish him for
assaulting C.O. Dubois.
well established that “inmates retain due process
rights in prison disciplinary proceedings.”
Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003).
“[P]rison discipline decisions affecting an
inmate's liberty interest cannot be ‘imposed
arbitrarily' but must be ‘supported by some
evidence in the record.'” Sira v. Morton,
380 F.3d 57, 76 (2d Cir. 2004) (quoting Superintendent v.
Hill, 472 U.S. 445, 454 (1985)). The Court need not
“examin[e] . . . the entire record, . . . assess . .
. the credibility of witnesses, or weigh . . . the
evidence.” Hill, 472 U.S. at 455-56. Yet the
Court must be satisfied that there was “‘reliable
evidence' of the inmate's guilt.” Luna v.
Pico, 356 F.3d 481, 488 (2d Cir. 2004). Colao relied on
the testimony of both Padgett and Dubois, together with the
misbehavior report, in reaching his decision, Dkt. No. 24-1
(“Appendix A”) at 33-34,  and Brown has not given any
reason to believe that evidence was unreliable, see
Livingston v. Kelly, 423 F. App'x 37, 40 (2d Cir.
2011) (“The challenged discipline was supported by the
eyewitness testimony of the assault victims, [who were
defendant] Officers. The credibility of these witnesses was
properly resolved by the hearing officer and is not a subject
for independent review by this court.”). Further, Brown
cannot state a procedural due process claim simply by
suggesting that Colao refused to credit testimony favorable
to him. See Kotler v. Daby, No. 10-CV-136, 2013 WL
1294282, at *10 (N.D.N.Y. Mar. 28, 2013) (“Even though
Plaintiff provides a very different version of the incident
in question, Defendant . . . was entitled to make credibility
determinations in rendering his decision and Plaintiff's
own testimony to the contrary does not render the disposition
unsupported by some evidence.”); Walsh v.
Finn, 865 F.Supp. 126, 129 (S.D.N.Y. 1994) (“Once
the court determines that the evidence is reliable, its
inquiry ends-it should not look further to see whether other
evidence in the record may have suggested a contrary
conclusion.”). Thus, this objection is meritless.
remainder of Brown's objections are either conclusory or
do not respond to the findings or recommendations made by
Judge Hummel. Accordingly, the Court has reviewed the
Report-Recommendation for clear error and has found none.
it is hereby:
that the Report-Recommendation (Dkt. No. 51) is APPROVED and
ADOPTED in its entirety; and it is further
that defendant Colao's Motion to Dismiss (Dkt. No. 24) is