United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
pro se, Joshua Goodwin (“plaintiff”), a
New York State prisoner, brings this action pursuant to 42
U.S.C. § 1983, alleging claims of deliberate
indifference to medical needs in violation of the Eighth
Amendment. This case was originally assigned to District
Judge Lawrence J. Vilardo,  who referred it to Magistrate
Judge Leslie G. Foschio for consideration of the factual and
legal issues presented, and to prepare and file a Report and
Recommendation (“R&R”) containing a
recommended disposition of the issues raised in
defendants' motion for summary judgment pursuant to
Fed.R.Civ.P. 56. Judge Foschio issued an R&R on September
8, 2016, in which he recommended that defendants' motion
be granted in its entirety. See doc. 34. On September 22,
2016, plaintiff filed objections to the R&R. See doc. 35.
For the reasons discussed below, the Court adopts the R&R
and grants defendants' motion for summary judgment in its
The Report and Recommendation
motion for summary judgment argues that plaintiff has failed
to state a cognizable claim of deliberate indifference under
the Eighth Amendment, and that at best, defendants'
actions amount merely to negligence and do not rise to the
level of an Eighth Amendment violation. See doc. 24-2. The
R&R found that the record is devoid of any material issue
of fact with regard to either of plaintiff's two
deliberate indifference claims. Accordingly, the R&R
recommended that defendants' motion be granted and the
case dismissed. Plaintiff's objections to the R&R
(doc. 35) generally reiterate his claims in the complaint.
Standard of Review
to Rule 56 of the Federal Rules of Civil Procedure,
“[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). Once the movant has met this
burden, the burden shifts to the nonmovant who must
“come forward with evidence to allow a reasonable jury
to find in his favor.” Lizardo v. Denny's,
Inc., 270 F.3d 94, 101 (2d Cir. 2001); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 325-27
(1986). The court must draw all factual inferences, and view
the factual assertions in materials such as affidavits,
exhibits, and depositions in the light most favorable to the
nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Celotex, 477
U.S. at 322. However, a nonmovant benefits from such factual
inferences “only if there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007), quoting Fed.R.Civ.P. 56(c).
as here, the party opposing summary judgment is proceeding
pro se, the Court must “read the pleadings . .
. liberally and interpret them to raise the strongest
arguments that they suggest.” Corcoran, 202
F.3d at 536. However, “proceeding pro se does
not otherwise relieve [the plaintiff] from the usual
requirements of summary judgment.” Fitzpatrick v.
N.Y. Cornell Hosp., 2003 WL 102853, *5 (S.D.N.Y. Jan. 9,
reviewing a report and recommendation, the district 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)(C). The district
court “shall make 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). Where “the objecting party makes only
conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report and
recommendation strictly for clear error.” Zaretsky
v. Maxi-Aids, Inc., 2012 WL 2345181, *1 (E.D.N.Y. June
18, 2012) (internal quotation marks omitted). Even where a
plaintiff proceeds pro se, objections to an R&R
will be reviewed for clear error where they “merely
reiterate [his] original arguments and state a general
disagreement with the outcome of the R&R.”
Freeman v. Dep't of Env. Prot., 2013 Wl 801684,
*2 (E.D.N.Y. Mar. 5, 2013); see Almonte v. N.Y.S. Div. of
Parole, 2006 WL 149049, *4-5 (N.D.N.Y. Jan. 18, 2006)
(explaining that resubmitting the same arguments previously
made “fails to comply with the specificity
requirement”). Here, because plaintiff's objections
are quite general, the Court reviews the R&R for clear
reviewed the R&R for clear error, the Court finds none.
Plaintiff's claims center on his need for a knee brace
due to arthritis of the knees and back. As the R&R found,
the evidence establishes plaintiff's concession that, as
of the date of the first incident claimed, he was required to
possess a permit for a medical assistive device, yet he let
this permit lapse after a transfer from Five Points
Correctional Facility to Southport. As Judge Foschio noted,
requiring a prisoner to possess a permit for a medical
assistive device does not in itself amount to deliberate
indifference in violation of the Eighth Amendment. See doc.
34 at 15 (citing Grant v. Smaldone, 2009 WL 2823736,
*7 (N.D.N.Y. Aug. 31, 2009)). Moreover, the facts established
at the summary judgment stage demonstrate that none of the
defendants acted with the requisite deliberate indifference
necessary to establish such a claim. Id. at 15-16.
as Judge Foschio found, regarding the second incident claimed
in the complaint, “there is no evidence in the record
from which a reasonable jury could conclude that [p]laintiff
protested ascending the stairs . . ., advised [d]efendants of
[his] permit, or that [d]efendants insisted [p]laintiff
ascend the stairs despite such protest.” Id.
at 18. The Court also agrees with the R&R's finding
that, to the extent this complaint alleges a due process
claim, no reasonable view of the evidence supports the
existence of such claim. Accordingly, the Court adopts the
R&R in its entirety, grants defendants' motion for
summary judgment in its entirety, and dismisses the complaint
reasons stated above as well as those set forth in the
R&R, the Court hereby adopts the R&R (doc. 34) in its
entirety. Defendants' motion for summary judgment (doc.
24) is granted in its entirety. Plaintiff's objections to
the R&R (doc. 35) are ...