United States District Court, N.D. New York
DECISION AND ORDER
LAWRENCE E. KAHN U.S. DISTRICT JUDGE.
matter comes before the Court following a
Report-Recommendation filed on January 9, 2018, by the
Honorable Thérèse Wiley Dancks, U.S. Magistrate
Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule
72.3. Dkt. No. 151 (“Report-Recommendation”).
Defendants and pro se plaintiff Stuart Dizak timely filed
objections. Dkt. Nos. 154 (“Defendants'
Objections”); 159 (“Plaintiff's
fourteen days after a party has been served with a copy of a
magistrate judge's report-recommendation, the party
“may serve and file specific, written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b); L.R. 72.1(c). If no objections are made, or if an
objection is general, conclusory, perfunctory, or a mere
reiteration of an argument made to the magistrate judge, a
district court need review that aspect of a
report-recommendation only for clear error. Barnes v.
Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y.
Mar. 18, 2013); Farid v. Bouey, 554 F.Supp.2d 301,
306-07, 306 n.2 (N.D.N.Y. 2008), abrogated on other grounds
by Widomski v. State Univ. of N.Y. at Orange, 748
F.3d 471 (2d Cir. 2014); see also Machicote v.
Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2
(S.D.N.Y. Aug. 25, 2011) (“[E]ven 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.”). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”
§ 636(b). Otherwise, a court “shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
object to Judge Dancks's application of Local Rule
7.1(a)(3), which governs summary judgment motions in this
District. Specifically, Defendants claim that Judge Dancks
“incorrectly extrapolated facts beyond the record
provided” and improperly “excuse[d] [P]laintiff
from his failure to comply with L.R. 7.1(a)(3).”
Defs.' Objs. at 1. The Court rejects both claims, which
are not supported by the relevant caselaw or Judge
Dancks's detailed and reasoned Report-Recommendation.
do not identify any specific facts that Judge Dancks
allegedly extrapolated incorrectly. Instead, they seem to
argue that Judge Dancks's review of the record in its
entirety, rather than the parties' statements of material
facts in isolation, constituted an abuse of discretion.
Id. at 2. The Second Circuit has clearly rejected
this argument. “A district court has broad discretion
to determine whether to overlook a party's failure to
comply with the local court rules, ” and “may in
its discretion opt to ‘conduct an assiduous review of
the record' even where one of the parties has failed to
file  a [7.1] statement.” Holtz v.
Rockefeller, 258 F.3d 62, 73 (2d Cir. 2001) (quoting
Monahan v. N.Y.C. Dep't of Corrs., 214 F.3d 275,
292 (2d Cir. 2000)), abrogated on other grounds by Gross
v. FBL Fin. Servs., 557 U.S. 167 (2009). Here, where
Plaintiff was consistently involved in the litigation and
merely failed to respond to a few statements in
Defendants' Rule 7.1 submission, Judge Dancks
appropriately exercised her discretion in deciding to review
the record in its entirety.
addition, when deciding a motion for summary judgment, the
court “must . . . assess whether the moving
party has fulfilled its burden of demonstrating that there is
no genuine issue of material fact and its entitlement to
judgment as a matter of law.” Vermont Teddy Bear
Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d.
Cir. 2004) (emphasis added); see also Johnson v.
Lew, No. 13-CV-1072, 2017 WL 3822047, at *2 n.4
(N.D.N.Y. Aug. 30, 2017) (“[A]s in every case, the
Court reviews Defendant's record citations to determine
whether they support the facts asserted in his Rule 7.1
Statement.” (citing Vermont Teddy Bear, 373
F.3d at 244)). Judge Dancks followed these directions
admirably and reviewed the extensive record with diligence.
Absent any specific objection from Defendants regarding Judge
Dancks's factual findings or legal conclusions, the Court
has reviewed the Report-Recommendation for clear error and
has found none.
it is hereby:
that the Report-Recommendation (Dkt. No. 151) is
APPROVED and ADOPTED in its entirety; and it
that Defendants' motion for summary judgment (Dkt. No.
111) is GRANTED in part and DENIED
in part. The Motion is GRANTED as
to Plaintiffs § 1983 excessive force claim against
defendants Lavallee and Rogers. The Motion is otherwise
DENIED; and it is further
that the Clerk shall terminate Lavallee as a defendant in