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Martinez v. Morton

United States District Court, N.D. New York

March 1, 2018

RAMON MARTINEZ, Plaintiff,
v.
OFFICER MORTON, Mid-state Correctional Facility, Defendant.

          RAMON MARTINEZ PLAINTIFF PRO SE

          OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL ATTORNEY FOR DEFENDANT

          AIMEE M. COWAN, AAG

          ORDER

          Mae A. D'Agostino, U.S. District Judge

         On 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 1.[1] The Complaint asserted that Defendant assaulted Plaintiff in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. See id. at 5.

         The 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.

         On July 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.

         After 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 (S.D.N.Y. 2009))).

         Magistrate 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.

         Magistrate 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.

         In 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).

         Here, 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).

         Having 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 ...


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