United States District Court, S.D. New York
THEODORE O. WILSON III, Plaintiff,
C.O. FERNANDO CALDERON, Defendants.
MEMORANDUM DECISION AND ORDER
B. DANIELS, United States District Judge
se Plaintiff Theodore O. Wilson III filed this action
under 42 U.S.C. § 1983 against Correction Officers
("CO.") Fernando Calderon, Rosa Elliot, Christopher
Kinlock, Dale Moore, and John Doe, and Captains France and
Bramwell alleging deprivation of his constitutional rights at
Rikers Island while he was a pretrial detainee. (Compl., ECF
No. 1.) Defendants moved for summary judgment. (Defs.'
Mot. for Summ. J. ("Mot."), ECF No. 128.)
matter was referred to Magistrate Judge Gabriel Gorenstein.
(ECF No. 8.) Before this Court is Magistrate Judge
Gorenstein's Report and Recommendation ("Report,
" ECF No. 153), recommending that this Court grant
Defendants' motion for summary judgment on all claims
except Plaintiffs due process claim and excessive force claim
against C.O.s Calderon, Elliot, Kinloch, and Moore, and
Captain France. (Id. at 34.)
Report, Magistrate Judge Gorenstein advised the parties that
failure to file timely objections to the Report would
constitute a waiver of those objections on appeal. Id.;
see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Plaintiff filed timely objections to the Report (PI. Obj. to
Report ("PI. Obj."), ECF No. 154) and Defendants
did not respond. This Court overrules Plaintiffs objections
and fully adopts Magistrate Judge Gorenstein's
district court may accept, reject or modify, in whole or in
part, the findings and recommendations set forth within the
Report. See 28 U.S.C. § 636(b)(1)(C). When no
objections to the Report are made, the Court may adopt the
Report if "there is no clear error on the face of the
record." Adee Motor Cars, LLC v. Amato, 388
F.Supp.2d 250, 253 (S.D.N.Y. 2005) (citation omitted).
there are objections to the Report, this Court must make a
de novo determination as to the objected-to portions
of the Report. 28 U.S.C. § 636(b)(1)(C); see also
Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y.
2006). It is sufficient that this Court "arrive at its
own, independent conclusions" regarding those portions
to which objections were made. Nelson v. Smith, 618
F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (internal citation
omitted); see United States v. Raddatz, 447 U.S.
667, 675-76 (1980). However, where a litigant's
objections are conclusory, repetitious, or perfunctory, the
standard of review is clear error. McDonaugh v.
Astrue, 672 F.Supp.2d 542, 547-48 (S.D.N.Y. 2009).
6, 2017, Plaintiff submitted a letter "objecting
entirely" to Magistrate Judge Gorenstein's
recommendation to grant summary judgment on Plaintiffs false
arrest, conspiracy, First Amendment, and defamation claims.
In addition to this conclusory objection, Plaintiff repeated
allegations previously submitted and considered by Judge
Gorenstein. (PL Obj. at 2-3.) Because Plaintiffs objections
are conclusory and repetitious, the standard of review is
THE REPORT IS ADOPTED IN FULL
Report properly held that Defendants' motion for summary
judgment should be granted as to Plaintiffs false arrest,
malicious prosecution, conspiracy, First Amendment, and
defamation claims, and denied as to Plaintiffs due process
and excessive force claims. (Report at 30-33.) There was no
clear error in Magistrate Judge Gorenstein's findings.
This Court has considered the issues raised in Plaintiffs
objections and adopts Judge Gorenstein's Report in full.
Summary Judgment is GRANTED as to Plaintiffs False Arrest,
Malicious Prosecution, Conspiracy, First Amendment, and
Report properly found that "[b]ecause Wilson pled guilty
to aggravated harassment. . . probable cause existed for his
arrest" and Plaintiffs false arrest claim is therefore
barred. (Id. at 30.) The Report also properly found
that "[b]ecause Wilson was convicted by his plea of
guilty [and] the case against him in state court did not
terminate in his favor, " Plaintiffs malicious
prosecution claim is properly dismissed. (Id. at
31.) Magistrate Judge Gorenstein also properly found that
because all Defendants were employed by the New York City
Department of Correction, and acting within the scope of
their employment, "a conspiracy to commit an action
compensable under Section § 1983 could not exist between
them." (Id. at 32.) Further, Judge Gorenstein
properly found that no reasonable jury could conclude that
Defendants' use of force in the incident was in pursuit
of some personal interest separate from their interest in
acting as corrections officers. The Report also properly
concluded that Plaintiffs First Amendment claim should be
dismissed, as the claim more appropriately "arise[s]
under the Due Process protections of the Fifth and Fourteenth
Amendment, " which survive in the remaining due process
claim. (Id. at 33.) Lastly, the Report properly
found that Plaintiff failed to satisfy the elements of a
defamation claim under New York law. (Id.)
Summary Judgment is DENIED as to Plaintiffs Due Process and
Excessive Force Claims
Report properly found that "issues of material fact
exist regarding the reasonableness of the officers' use
of force" and therefore summary judgment on Plaintiffs
excessive force claim should be denied. (Id. at 21.)
The Report also properly found that Defendants failed to meet
their "burden of demonstrating that Wilson failed to
exhaust his available administrative remedies" and
therefore summary judgment on Plaintiffs due process claim
should be denied. (Id. at 25.) No ...