United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD, UNITED STATES DISTRICT JUDGE
Jerry Grays ("Plaintiff) filed this action on May 17,
2013. (Dkt. 1). Plaintiff filed an amended complaint on
November 10, 2015, alleging that his First, Eighth, and
Fourteenth Amendment rights were violated after he was
assaulted by various correctional officers and denied medical
treatment while incarcerated at the Elmira Correctional
Facility. (Dkt. 33). The case was referred to United States
Magistrate Judge Kenneth Schroeder, Jr., for disposition of
all non-dispositive motions, and to hear and report on
dispositive motions for the consideration of this Court
pursuant to 28 U.S.C. § 636(b)(1). (See Dkt.
67). On March 8, 2016, Defendants Amy Sechrist
("Sechrist") and Brenda Zelko ("Zelko")
filed a motion to dismiss. (Dkt. 41). Zelko has since been
terminated from this action, (Dkt. 47), leaving Sechrist
("Defendant") as the sole movant before the Court
on this motion. Magistrate Judge Schroeder filed a report and
recommendation ("R&R") on April 3, 2017,
recommending that this Court grant the motion to dismiss.
(Dkt. 68). Plaintiff filed timely objections to the R&R,
(Dkt. 73), and Defendant filed a response (Dkt. 75).
reasons set forth below, this Court agrees with the
R&R's recommendation. Therefore, this Court hereby
adopts the R&R and the motion to dismiss is granted.
However, the Court clarifies that the First Amendment
retaliation claim is dismissed without prejudice, and
Plaintiff will be granted leave to amend his complaint to
further specify his claim for retaliation in accordance with
this Decision and Order.
factual background of this case is set forth in detail in the
R&R. (See Dkt. 68 at 2-4). Familiarity with the
R&R is assumed for purposes of this Decision and Order.
Standard of Review
district court reviews any specific objections to a report
and recommendation under a de novo standard.
Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §
636(b)(1)(C) ("A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made."). To trigger the de novo review
standard, objections must "specifically identify the
portions of the proposed findings and recommendations to
which objection is made and the basis for each
objection." L.R. Civ. P. 72(b); see, e.g., Molefe v.
KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487
(S.D.N.Y. 2009). In the absence of a specific objection, the
district court reviews for clear error or manifest injustice.
Singh v. N.Y. State Dep't of Taxation &
Fin., 865 F.Supp.2d 344, 348 (W.D.N.Y. 2011). Following
review of the report and recommendation, the 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)(1).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Rochester Drug Co-op.,
Inc. v. Biogen Idec U.S., 130 F.Supp.3d 764, 769
(W.D.N.Y. 2015). "In defending against a motion to
dismiss, 'a plaintiffs obligation . . . requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level.'" Oldfield v. Vill. of
Dansville, 583 F.Supp.2d 440, 442 (W.D.N.Y. 2008)
(quoting Twombly, 550 U.S. at 555).
evaluating the complaint, a court must accept as true all of
the plaintiffs factual allegations, and must draw all
inferences in the plaintiffs favor. Larkin v.
Savage, 318 F.3d 138, 139 (2d Cir. 2003). "Further,
when the plaintiff proceeds pro se, as in this case,
a court is obliged to construe his pleadings liberally,
particularly when they allege civil rights violations."
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004). In addition, "[i]t is well-settled that pro
se litigants generally are entitled to a liberal
construction of their pleadings, which should be read to
raise the strongest arguments that they suggest."
Green v. United States, 260 F.3d 78, 83 (2d Cir.
2001) (internal quotations and citation omitted). Moreover,
"a pro se litigant should be afforded every
reasonable opportunity to demonstrate that he has a valid
claim." Satchell v. Dilworth, 745 F.2d 781, 785
(2d Cir. 1984).
First Amendment Retaliation Claims
42 of the United States Code Section 1983 "imposes civil
liability upon persons who, acting under color of state law,
deprive an individual of rights, privileges, or immunities
secured by the Constitution and laws."
Johnson-Schmitt v. Robinson, 990 F.Supp.2d 331,
339-40 (W.D.N.Y. 2013). "Section 1983 'is not itself
a source of substantive rights.' It merely provides
'a method for vindicating federal rights elsewhere
conferred. . . .'" Patterson v. Cty. of Oneida,
N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (quoting
Baker v. McCollan, 443 U.S. 137, 145 (1979)).