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Marino v. Schult

United States District Court, N.D. New York

March 30, 2018

VINCENT MICHAEL MARINO, Plaintiff,
v.
DEBORAH G. SCHULT, et al., Defendants.

          Vincent Michael Marino Plaintiff, pro se

          Hon. Grant C. Jaquith, Acting United States Attorney, Northern District of New York Karen Folster Lesperance, Assistant United States Attorney James T. Foley U.S. Courthouse Attorneys for Defendants

          MEMORANDUM-DECISION AND ORDER

          Hon. Norman A. Mordue, Senior U.S. District Court Judge

         I. Introduction

         Plaintiff pro se Vincent Michael Marino brought this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his civil rights. (Dkt. No. 52). The only remaining claims are for First Amendment retaliation against Defendants Schult, Sepanek, and Lucas, who at all relevant times were employed at FCI Ray Brook, where Plaintiff was formerly incarcerated. (See Dkt. No. 86). Defendants have moved for summary judgment on the remaining claims. (Dkt. No. 133). On December 11, 2017, United States Magistrate Judge Daniel J. Stewart issued a Report-Recommendation and Order, recommending that Defendants' motion be granted and the action dismissed. (Dkt. No. 149). Subsequently, Plaintiff filed objections to the Report-Recommendation, [1] a motion to compel certain discovery and for permission to amend his opposition to summary judgment, and a motion for rejection of the Report-Recommendation, denial of summary judgment, imposition of the sanction of default, and other relief. (Dkt. Nos. 152-154).

         On January 11, 2018, this Court referred Plaintiff's new motions to Magistrate Judge Stewart for decision on non-dispositive issues and/or recommendation on dispositive issues, and held in abeyance the Report-Recommendation and Defendants' motion for summary judgment. (Dkt. No. 155). On January 16, 2018, Plaintiff filed an additional “reply in opposition to Magistrate Judge Stewart's Report-Recommendation and Order, ” wherein Plaintiff again emphasized the outstanding discovery he needed to oppose Defendants' motion. (Dkt. No. 156). On January 31, 2018, Magistrate Judge Stewart granted Plaintiff's motion to compel, allowed him to submit additional briefing in connection with Defendants' motion for summary judgment, and denied his motion for default judgment. (Dkt. No. 157). Plaintiff then submitted supplemental papers in further opposition to Defendants' motion. (Dkt. Nos. 162-63).

         On March 7, 2018, Magistrate Judge Stewart issued an Amended Report Recommendation and Order, which again recommended that Defendants' motion for summary judgment be granted and the action dismissed. (Dkt. No. 164). On March 28, 2018, Plaintiff filed timely objections to the Amended Report-Recommendation.[2] (Dkt. No. 167). For the reasons set forth below, the Amended Report-Recommendation is adopted in its entirety.

         II. Standard of Review

         This court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F.Supp.3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id. “A proper objection is one that identifies the specific portions of the [Report and Recommendation] that the objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atlantic Airways, Ltd., 976 F.Supp.2d 290, 296 (E.D.N.Y. 2013) (citation omitted). Properly raised objections must be “specific and clearly aimed at particular findings” in the Report. Molefe v. KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009). “To the extent . . . that the party makes only conclusory or general arguments . . . the Court will review the Report strictly for clear error.” DiPilato v. 7-Eleven, Inc., 662 F.Supp. 2d 333, 339 (S.D.N.Y. 2009). “The objections of parties appearing pro se are generally accorded leniency and should be construed to raise the strongest arguments that they suggest.” Id. at 340 (quotations and citation omitted).

         Summary judgment may be granted only if all the submissions taken together “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In re World Trade Center Lower Manhattan Disaster Site Litig., 758 F.3d 202, 210 (2d Cir. 2014). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A fact is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In ruling on a summary judgment motion, the court “must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, “[m]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (internal quotation marks and citations omitted)).

         III. Discussion

         a. The Amended Report-Recommendation

         In the Amended Report-Recommendation, Magistrate Judge Stewart deemed admitted the facts set forth in Defendants' Statement of Material Facts, to the extent they were properly supported by the record, based on Plaintiffs failure to file a response to Defendants' Statement. (Dkt. No. 164, p. 2). Magistrate Judge Stewart then recommended that Defendants' motion for summary judgment be granted as to Plaintiffs First Amendment retaliation claims, which alleged that after Plaintiff filed an affidavit in support of a fellow inmate's civil rights action, the Defendants took the following actions against him: 1) the confiscation of legal work and law books when Plaintiff was housed in the Special Housing Unit (“SHU”) at FCI Ray Brook; 2) the falsification of Plaintiff s security level from eleven to twenty-four, and consequent transfer to USP Pollock, which was known to have violent conditions; and 3) his placement in so-called “Diesel Therapy, ” whereby he was in transit for eight months from one facility to another. (Id.).

         As to the first claim, Magistrate Judge Stewart Recommended summary judgment based on “insufficient evidence to conclude that [Plaintiff] suffered an adverse action.” (Id., p. 10). Magistrate Judge Stewart observed that “Plaintiff has not elaborated on his allegations regarding legal work that was confiscated, and indeed, at his deposition, was unable to identify any impact on his court actions due to his legal materials being confiscated.” (Id.). Further, while Plaintiff claimed that Defendants confiscated his Federal Rules of Civil Procedure book, it was noted that Defendants “produced evidence that inmates in SHU at Ray Brook had access to a basic law library from 8:00 am to 9:00 pm, seven days a week, ” and “Plaintiff has ...


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