United States District Court, N.D. New York
MARTINEZ PLAINTIFF PRO SE
OF THE NEW YORK STATE ATTORNEY GENERAL ATTORNEY FOR DEFENDANT
M. COWAN, AAG
D'Agostino, U.S. District Judge
December 2, 2015, Plaintiff pro se Ramon Martinez
("Plaintiff"), an inmate in the custody of the New
York State Department of Corrections, filed a complaint (the
"Complaint") in the Northern District of New York
against Defendant Morton ("Defendant") pursuant to
42 U.S.C. § 1983. See Dkt. No. 1-2 at
The Complaint asserted that Defendant assaulted Plaintiff in
violation of the Eighth Amendment's prohibition against
cruel and unusual punishment. See id. at 5.
alleged assault occurred on April 23, 2015, while Plaintiff
was an inmate at Midstate Correctional Facility
("Midstate"). See Dkt. No. 1 at ¶ 6.
Plaintiff alleges that while he was cleaning a bathroom,
Defendant "grabbed [Plaintiff] by the neck, . . .
slammed his head against the wall, maybe twice . . . . [and]
tried to force [P]laintiff's head into [an empty]
sink." Dkt. No. 42 at 11. After the incident, Defendant
denied Plaintiff permission to speak with a sergeant. See
Id. Further, Plaintiff was not seen by medical personnel
until May 21, 2015, where his injury was photographed
documented. See id.
5, 2017, Defendant filed a motion for summary judgment.
See Dkt. No. 33. On August 30, 2017, Plaintiff filed
a response in opposition. See Dkt. No. 38. On
September 9, 2017, Defendant filed a reply. See Dkt.
No. 39. On October 6, 2017, Magistrate Judge Baxter issued a
Report-Recommendation recommending that the Court grant
Defendant's motion for summary judgment. See
Dkt. No. 42.
examining the record, Magistrate Judge Baxter concluded that
the alleged assault did not constitute excessive force. To
establish an Eighth Amendment excessive force claim, a
plaintiff must satisfy both objective and subjective
elements. See Blyden v. Macusi, 186 F.3d 252, 262
(2d Cir. 1999). Under Hudson v. McMillian, 503 U.S.
1, 9-10 (1992), de minimis use of force does not
satisfy the objective element of an Eighth Amendment claim,
"provided that the use of force is not of a sort
repugnant to the conscience of mankind." Further, as the
Report-Recommendation noted, "[a]lthough the lack of
injury is not fatal to an excessive force claim, the extent
and nature of an injury, if any, '''is probative
of the amount and type of force actually used . . . and that
in turn is likely to reflect on the reasonableness of that
force[.]'''" Dkt. No. 42 at 11 (quoting
Cunningham v. McCluskey, No. 05 Civ. 10169, 2011 WL
2791336, *7 (S.D.N.Y. June 22, 2011) (quoting Yang Feng
Zhao v. City of New York, 656 F.Supp.2d 375, 390
Judge Baxter noted that the only actual offensive action was
Defendant allegedly holding Plaintiff's neck in a
stranglehold and slamming his head against the wall twice.
See Dkt. No. 42 at 11. Although Plaintiff did not
pursue medical treatment immediately, the photographs and
medical examination he received on May 21, 2015, showed no
visual sign of "'injuries, cuts, marks [or]
bruises.'" Id. at 13. Magistrate Judge
Baxter found no evidence to support Plaintiff's claim
that Defendant prevented him from seeking medical attention
earlier. See Id. at 12. Further, "Plaintiff
himself testified at his deposition that he was not
'injured' on April 23, 2015." Id. at
13. These facts led Magistrate Judge Baxter to conclude that
the force was de minimis and not of the sort
repugnant to the conscience of mankind. See Id.
Magistrate Judge Baxter noted that there have been multiple
decisions granting summary judgment to defendants in cases
with similar facts. See Id. at 14. Thus, Magistrate
Judge Baxter concluded that the claim failed the objective
prong of excessive force analysis. See id.
Judge Baxter also noted that "it is unlikely that any
use of force occurred at all." Id. However,
this determination was "secondary to the court's
findings." Id. at 16.
reviewing a report and recommendation, a 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). When a party
makes specific objections to a magistrate judge's report,
the district court engages in de novo review of the
issues raised in the objections. See id.; Farid
v. Bouey, 554 F.Supp.2d 301, 307 (N.D.N.Y. 2008). When a
party fails to make specific objections, the court reviews
the magistrate judge's report for clear error. See
Farid, 554 F.Supp.2d at 307; see also Gamble v.
Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y.
Nov. 29, 2004).
Plaintiff did not submit objections to Magistrate Judge
Baxter's Report-Recommendation. A litigant's failure
to file objections to a magistrate judge's report-
recommendation, even when that litigant is proceeding pro
se, waives any challenge to the report on appeal.
See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)
(holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate
judge's report waives further judicial review of the
point" (citation omitted)). A pro se litigant
must be given notice of this rule; notice is sufficient if it
informs the litigant that the failure to timely object will
result in the waiver of further judicial review and cites
pertinent statutory and civil rules authority. See Frank
v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small
v. Sec'y of Health & Human Servs., 892 F.2d 15,
16 (2d Cir. 1989) (holding that a pro se party's
failure to object to a report and recommendation does not
waive his right to appellate review unless the report
explicitly states that failure to object will preclude
appellate review and specifically cites 28 U.S.C. §
636(b)(1) and Rules 72, 6(a) and former 6(e) of the Federal
Rules of Civil Procedure).
reviewed Magistrate Judge Baxter's October 6, 2017,
Report-Recommendation, the record, and the applicable law,
the Court concludes that Magistrate Judge Baxter correctly
recommended that the Court should grant Defendant's