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Franks v. City of New York

United States District Court, E.D. New York

March 31, 2017

DEREK RAYMOND FRANKS, Plaintiff,
v.
CITY OF NEW YORK, PO DANIELLE DONOGHUE, PO MICHELE MAZZA, PO FRANK MUIRHEAD, PO ROBERT WOODHOUSE, SGT BEKIM KALIKOVIC, RETIRED PO MICHAEL DAVIS, FDNY JOHN DOE, EMS JOHN DOE, Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          KIYO A. MATSUMOTO, United States District Judge:

         Presently before the court is the Report and Recommendation of United States Magistrate Judge Ramon E. Reyes, Jr., filed on January 4, 2017, recommending that defendants' motion for summary judgment should be granted. (ECF No. 44, Report and Recommendations re Motion for Summary Judgment dated 1/4/2017 (“R&R”) at 1.) Plaintiff timely raises the instant objections to the R&R's recommendation that the court grant summary judgment. (ECF No. 47, Objection to Report and Recommendations to grant summary judgment, dated 3/2/2017 (“Pl. Obj.”).) Defendants have not objected to the R&R and have not responded to plaintiff's objections. The court has undertaken a comprehensive de novo review of the R&R and the record in light of plaintiff's written objections pursuant to 28 U.S.C. § 636(b)(1)(C). For the reasons set forth below, the court adopts and affirms the R&R in its entirety.

         Background

         Pro se plaintiff Derek Franks commenced the instant action on November 8, 2013, pursuant to 42 U.S.C. § 1983 (“Section 1983”), alleging, inter alia, excessive force and failure to intervene in connection with his arrest on November 8, 2010, against the City of New York (the “City”), Police Officer Danielle Donoghue (“Officer Donoghue”), Police Officer Michele Mazza (“Officer Mazza”), Police Officer Frank Muirhead (“Officer Muirhead”), and Police Officer Robert Woodhouse (“Officer Woodhouse”), and by amended complaint on May 19, 2014, plaintiff added defendants Sergeant Bekim Kalikovic (“Sergeant Kalikovic”), retired Police Officer Michael Davis (“Officer Davis”), “FDNY John Doe” and “EMS John Doe” (the “John Doe defendants”) (all defendants are collectively designated “defendants”). (See ECF No. 1, Complaint, dated 11/8/2013; ECF No. 20, Supplemental Complaint / “Amendment of Claim, ” dated 5/19/2014.) The court presumes familiarity with the underlying facts and procedural history as set forth in greater detail in the R&R, and which the court adopts and incorporates herein, based on its de novo review of the record. (See R&R at 1-3.)

         On January 6, 2016, defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Rule 56”). (See ECF No. 36, Motion for Summary Judgment; ECF No. 37, Declaration re Motion for Summary Judgment (“Def. Decl.”); ECF No. 38, Rule 56.1 Statement of Undisputed Facts (“Def. 56.1 Stmt.”); ECF No. 40, Memorandum in Support of Motion for Summary Judgment (“Def. Mem.”).) Plaintiff opposed defendants' motion on March 2, 2016 (ECF No. 41, Memorandum in Opposition re Motion for Summary Judgment (“Pl. Opp.”)), and defendants filed a reply on March 18, 2016. (ECF No. 42, Reply in Support of Motion for Summary Judgment (“Def. Repl.”).) On October 7, 2016, this court referred the instant motion to Judge Reyes for an R&R. (See Order Referring Motion, dated 10/7/2016.)

         On January 4, 2017, Judge Reyes issued an R&R recommending that the court grant defendants' motion for summary judgment. The R&R notified the parties that any objections to the R&R must be filed within fourteen days of receipt of the R&R. (R&R at 6-7.) On March 2, 2017, after seeking and obtaining an extension of time to file objections, plaintiff filed his objections to the R&R, requesting that this court deny defendants' motion for summary judgment. (See Pl. Obj. at 2.) Defendants did not respond to plaintiff's objections.

         Discussion

         For the reasons set forth below, upon review of the R&R and the instant objections, as well as a comprehensive de novo review of the applicable law and the underlying record, including the court docket, the amended complaint, defendants' motion for summary judgment, plaintiff's opposition, and the related declarations and exhibits, the court affirms and adopts the R&R in its entirety.

         I. Standards of Review

         A district court reviews those portions of a Report and Recommendation to which a party has timely objected under a de novo standard of review and “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)(C). Where “no or merely perfunctory objections” to the Report and Recommendation have been filed, however, the district court reviews for clear error. Caires v. Jp Morgan Chase Bank N.A., No. 16-cv-2694, 2017 WL 384696, at *1 (S.D.N.Y. January 27, 2017). The district court is permitted “to adopt those sections of a magistrate judge's report to which no specific objection is made, so long as those sections are not facially erroneous.” S.E.C. v. Nadel, No. 11-cv-215, 2016 WL 4718188, at *2 (E.D.N.Y. September 9, 2016) (citations omitted).

         Although a pro se party's objections are “generally accorded leniency” and should be construed to “raise the strongest arguments that they suggest, ” Milano v. Astrue, No. 05-cv-6527, 2008 WL 4410131, at *2 (S.D.N.Y. September 26, 2008) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)), a pro se party's objections “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.” Pinkney v. Progressive Home Health Servs., No. 06-cv-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008), aff'd, 367 F. App'x 210 (2d Cir. 2010) (citations and internal quotation marks omitted); see also Leibovitz v. City of New York, No. 14-cv-3297, 2016 WL 1189526, at *1 (S.D.N.Y. March 21, 2016) (“Although [t]he objections of pro se parties are ‘generally accorded leniency and should be construed to raise the strongest arguments that they suggest[, ] ... even 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.”) (internal citations and quotation marks omitted) (alterations in original).

         II. Plaintiff's Objections

         Plaintiff asserts a general objection to the R&R's recommendation that summary judgment be granted, and contends that summary judgment should be denied because certain evidence, namely a “four minute fifty-six second video” and “written statements from [his] witnesses” demonstrate issues of material fact. (Pl. Obj. at 2.) Although plaintiff does not specifically object to any particular recommendations or underlying rationale discussed in the R&R, the court construes plaintiff's objections to raise the strongest argument they suggest and reviews the R&R and underlying record de novo.

         In his instant objections, plaintiff claims that he has evidence, including a video, written witness statements, and medical records, which he also provided to defendants during discovery. (Pl. Obj. at 2.) However, the court has no record that such evidence was produced, and plaintiff did not include any of the aforementioned evidence in his opposition to defendants' summary judgment motion or in his objections to the R&R. Although a court must resolve all ambiguities and draw all reasonable inferences against the moving party, see Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)), cert. denied,534 U.S. 1065 (2001), “the nonmoving party may not rest upon mere conclusory allegations or denials” in opposing a motion for summary judgment. Castro v. Cnty. of Nassau, 739 F.Supp.2d 153, 165 (E.D.N.Y. 2010) (citing R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)). ...


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