United States District Court, N.D. New York
YOUNG Plaintiff pro se
OF THE NEW YORK AIMEE M. PAQUETTE, AAG STATE ATTORNEY GENERAL
Syracuse Regional Office Attorneys for Defendants
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge
se Plaintiff Peter Young, formerly an inmate in the
custody of the New York State Department of Corrections and
Community Supervision, commenced this civil rights action
pursuant to 42 U.S.C. § 1983 on September 13, 2012,
asserting claims arising out of his confinement at Auburn
Correctional Facility ("Auburn C.F."). See
Dkt. No. 1. After the Court dismissed the original complaint
on initial review, Plaintiff timely filed an amended
complaint. See Dkt. Nos. 26 & 30. Following
initial review of the amended complaint, the Court found that
the following claims survived initial review and required a
response: (1) First Amendment retaliation claim against
Defendants Fischer, Graham, Brower, Chandler, Casler, Heath,
and Fagen; (2) First Amendment legal mail interference claim
against Defendants Fischer, Graham, Chandler, Casler, and
Heath; (3) First Amendment denial of access to the court
claim against Defendants Graham, Chandler, Casler, and Heath;
(4) Eighth Amendment conditions of confinement claim against
Defendants Fischer, Brower, and Chandler; (5) Eighth
Amendment excessive force claim against Defendants Fischer,
Graham, and Vasile; (6) Fourteenth Amendment forced medical
care claim against Defendant Graham; and (7) Fourteenth
Amendment deprivation of personal property claim against
Defendant Graham. See Dkt. No. 44 at 29-30.
3, 2016, Defendants filed a motion for summary judgment,
arguing that Plaintiff's claims are meritless and that
Plaintiff has failed to establish the personal involvement of
Defendants Fischer, Graham, Chandler, and Vasile.
See Dkt. No. 139. In an Order and
Report-Recommendation dated March 6, 2017, Magistrate Judge
Dancks recommended that the Court grant in part and deny in
part Defendants' motion. See Dkt. No. 154.
Specifically, Magistrate Judge Dancks recommended that the
Court grant Defendants' motion for summary judgment as to
all claims with the exception of the Eighth Amendment
conditions of confinement claim against Defendants Chandler
and Brower, and the Eighth Amendment excessive force and
failure to intervene claim against Defendants Graham, Vasile,
Brower, Heath, and Casler. See Id. at 36.
neither party objected to Magistrate Judge Dancks'
recitation of the relevant background facts, and because it
is consistent with the record, the Court adopts the factual
background set forth in Magistrate Judge Dancks' Order
and Report-Recommendation. See Dkt. No. 154 at 3-7.
may grant a motion for summary judgment only if it determines
that there is no genuine issue of material fact to be tried
and that the facts as to which there is no such issue warrant
judgment for the movant as a matter of law. See Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994)
(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."
Id. at 36-37 (quotation and other citation omitted).
Moreover, it is well-settled that a party opposing a motion
for summary judgment may not simply rely on the assertions in
its pleadings. 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. 2502, 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").
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, 92
S.Ct. 594, 30 L.Ed.2d 652 (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 v.
Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2007)
(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)). "However, this does not mean that a pro
se litigant is excused from following the procedural
requirements of summary judgment. See Id. at 295
(citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL
527484, *1 (S.D.N.Y. May 16, 2001)). Specifically, "a
pro se party's 'bald assertion, '
completely unsupported by evidence" is not sufficient to
overcome a motion for summary judgment." Lee v.
Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995) (citing
Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
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).
litigant's failure to file objections to a magistrate
judge's report and recommendation, even when that
litigant is proceeding pro se, waives any challenge
to the report on appeal. See Cephas v. Nash, 328
F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule,
a party's failure to object to any purported error or
omission in a magistrate judge's report waives further
judicial review of the point" (citation omitted)). A
pro se litigant must be given notice of this rule;
notice is sufficient if it informs the litigant that the
failure to timely object will result in the waiver of further
judicial review and cites pertinent statutory and civil rules
authority. See Frank v. Johnson, 968 F.2d 298, 299
(2d Cir. 1992); Small v. Sec'y of Health and Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a
pro se party's failure to object to a report and
recommendation does not waive his right to appellate review
unless the report explicitly states that failure to object
will preclude appellate review and specifically cites 28
U.S.C. § 636(b)(1) and Rules 72, 6(a), and former 6(e)
of the Federal Rules of Civil Procedure).