Andino v. Fischer
| Decision Date | 17 March 2010 |
| Docket Number | No. 08 Civ. 558 (VM).,08 Civ. 558 (VM). |
| Parties | Luis ANDINO and DialloRafik A. Madison, Plaintiffs,v.Brian FISCHER et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
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DialloRafik A. Madison, Alden, NY, for Plaintiff.
Frederick Hongyee Wen, Assistant Attorney General of the State of New York, New York, NY, for Defendants.
DECISION AND ORDER
Pro se plaintiffs Luis Andino (“Andino”) 1 and DialloRafik A. Madison (“Madison”) brought this action alleging violations of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 42 U.S.C. § 1983; 28 C.F.R. § 35.134; and the First, Eighth and Fourteenth Amendments of the United States Constitution. Madison's claims arise from alleged failure by defendants to provide a reasonable accommodation pursuant to the ADA in connection with his suffering from post-traumatic stress disorder and their retaliation for his request, as well as from alleged harassment and retaliation for Madison's efforts to assist Andino in filing certain grievances with officials of the New York State Department of Correctional Services (“DOCS”). Defendants (collectively, “Defendants”), who consist of various DOCS officials, moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Madison moved to amend the complaint by adding additional defendants and claims or to supplement the complaint.
By Order dated December 18, 2009, Magistrate Judge Ronald L. Ellis, to whom this matter had been referred for supervision of pretrial proceedings, issued a Report and Recommendation (the “Report”), a copy of which is attached and incorporated herein, recommending that Madison's motions to amend or supplement the complaint be denied and that Defendants' motion to dismiss be granted. Madison did not file objections to the Report by the applicable deadline as specified in the Report, although the Court granted his requests for extensions on two occasions. For the reasons stated below, the Court adopts the recommendations of the Report in their entirety.
A district court evaluating a Magistrate Judge's report may adopt those portions of the report to which no “specific, written objection” is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law. Fed.R.Civ.P. 72(b); see also Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). “Where a party makes a ‘specific written objection ... after being served with a copy of the [magistrate judge's] recommended disposition,’ however, the district court is required to make a de novo determination regarding those parts of the report.” Cespedes v. Coughlin, 956 F.Supp. 454, 463 (S.D.N.Y.1997) ( citing United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)); Fed.R.Civ.P. 72(b). The Court is not required to review any portion of a Magistrate Judge's report that is not the subject of an objection. See Thomas, 474 U.S. at 149, 106 S.Ct. 466. A district judge may accept, set aside, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge as to such matters. See Fed.R.Civ.P. 72(b); DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994).
Having conducted a full review of the factual record in this litigation, including the pleadings, and the parties' respective papers submitted in connection with the underlying motions and in this proceeding, as well as the Report and applicable legal authorities, the Court concludes that the findings, reasoning, and legal support for the recommendations made in the Report are not clearly erroneous or contrary to law and are thus warranted. Accordingly, for substantially the reasons set forth in the Report the Court adopts the Report's factual and legal analyses and determinations, as well as its substantive recommendations, in their entirety as the Court's ruling on the underlying motions.
For the reasons discussed above, it is hereby
ORDERED that the Report and Recommendation of Magistrate Judge Ronald L. Ellis dated December 18, 2009 (Docket No. 48) is adopted in its entirety, and the motions (Docket Nos. 33, 34 and 37) of plaintiff DialloRafik A. Madison for leave to amend or supplement the complaint herein are DENIED, and the motion of defendants (Docket No. 25) to dismiss the complaint is GRANTED.
The Clerk of Court is directed to withdraw any pending motions and to close this case.
SO ORDERED.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se Plaintiffs Luis Andino and DialloRafik A. Madison brought this action under the Americans with Disabilities Act, the Rehabilitation Act, and the First, Eighth, and Fourteenth Amendments. On June 1, 2009, Andino was dismissed from this action as part of a stipulation of settlement in another action in the Western District of New York. ( See Doc. No. 47.) Now pending before the Court are 1) Defendants' Pre-Answer Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. No. 25); 2) Madison's Motion for leave to supplement the Complaint in response to the Motion to Dismiss (Doc. No. 37); 3) Plaintiffs' Motion for leave to Amend the Complaint in Response to Defendants' Motion to Dismiss (Doc. No. 33); and 4) Madison's motion for permission to amend the Complaint by adding additional defendants and claims (Doc. No. 34). For the reasons that follow, Madison's Motions to Amend or to Supplement his Complaint are DENIED, except insofar as he provides related and supplemental allegations that I consider in resolving Defendants' Motion, and I recommend that Defendants' Motion to Dismiss be GRANTED.
II. BACKGROUND
Andino and Madison filed the Complaint against the Department of Corrections; Commissioner of the Woodbourne Correctional Facility, Brian Fischer; and various correctional officers and other correctional facility staff. Their claims arise out of alleged violations of constitutional rights. Specifically, Andino and Madison allege violations of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131 et seq. ; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 42 U.S.C. § 1983; 28 C.F.R. § 35.134, and the First, Eighth, and Fourteenth Amendments of the United States Constitution. (Compl., Jan. 23, 2008, ¶ 1.) They sued all non-entity Defendants in both their individual and official capacities. (Compl. ¶¶ 12-13.)
On behalf of all but one of the served Defendants, the New York State Attorney General (“AG”) filed a pre-Answer Motion to Dismiss on September 5, 2008. (Doc. No. 25.) On October 28, 2008, and again on November 7, 2008, Madison moved for leave to supplement the Complaint in response to Defendants' Motion to Dismiss. Additionally, on October 16, 2008, Madison sought leave to amend the Complaint by adding additional defendants and claims. By Order dated December 5, 2008, the Court indicated that it would simultaneously consider and resolve Defendants' Motion to Dismiss and Plaintiffs' Motions to Amend or Supplement the Complaint. ( See Doc. No. 39.) Specifically, Madison's Motion to Amend is also considered as his response to Defendant's Motion to Dismiss. On January 20, 2009, Madison wrote to the Court requesting the opportunity to file a Reply to Defendants' Response to his Motion to Amend the Complaint and Sur-Response to their Motion to Dismiss (“Madison's Reply”). He indicated that he had received new information and asked that he be allowed to file this reply with the Court by February 20, 2009. Madison subsequently submitted that reply. ( See Doc. No. 41.) Because Andino has been dismissed, this Report and Recommendation addresses only Madison's claims and motions, and Defendants' submissions as they pertain to Madison.
The Complaint exceeds 150 paragraphs and identifies numerous individuals, only some of whom were named as Defendants. Additionally, service has not been effected as to all of the individuals identified as Defendants. The Court considers Madison's allegations only as to the served Defendants, namely: New York State Department of Correctional Services (“DOCS”); DOCS Commissioner Brian Fischer; Superintendent Raymond J. Cunningham; Deputy Superintendent of Programs Jean King; Deputy Superintendent of Security Paul Gonyea; Deputy Superintendent of Administration Peter Chiavaro; DOCS ADA Coordinator Robert Raymond; former DOCS Affirmative Action Administrator Earline Corbitt; Lieutenants J. Meehan and Steven Kate; Sergeant William Holloran; and Correction Officers Michael Picard, Douglas D. DePaolo, and Daniel J. Mazzaraco. ( See Defs.' Mem. at 2 n. 1.) A final served Defendant, George Cook, the County Clerk of the City of Woodbourne, was served on June 2, 2008, and has not requested representation from the AG. Nonetheless, the AG maintains that the case should be dismissed against Cook because of Madison's failure to allege sufficient personal involvement. (Defs.' Mem. at 2 n. 1, 20-21.) I recommend that any claims as to individuals and entities either listed in the Complaint or named but not served should be dismissed, without prejudice. Fed.R.Civ.P. 12(b)(5); Fed.R.Civ.P. 4(m); ( see Defs.' Mem. at 2 n. 1). Moreover, as this Recommendation indicates, Madison fails to allege specific facts against certain unnamed and/or unserved defendants. His claims as to these purported defendants will be addressed to the extent that I recommend that they by dismissed, with prejudice.
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