Cusamano v. Sobek

Decision Date26 January 2009
Docket NumberNo. 9:06-CV-0623 (GTS/GHL).,9:06-CV-0623 (GTS/GHL).
Citation604 F.Supp.2d 416
PartiesAnthony CUSAMANO, Plaintiff, v. Mr. SOBEK, Correctional Officer, et al., Defendants.
CourtU.S. District Court — Northern District of New York

Anthony Cusamano, Brooklyn, NY, Plaintiff, pro se.

Hon. Andrew M. Cuomo, Attorney General for the State of New York, James Seaman, Esq., Assistant Attorney General, of Counsel, New York, NY, for Defendants.


GLENN T. SUDDABY, District Judge.

Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, against thirteen (13) employees of the New York State Department of Corrections ("DOCS"), alleging that they violated his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution as well as his rights under Article 1, Section 6 of the New York Constitution. (Dkt. No. 1 [Plf.'s Compl.].) Currently pending before the Court are (1) Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56, (2) Plaintiff's cross-motion for summary judgment, (3) Plaintiff's cross-motion for an Order to stay decision on Defendants' motion, and to compel discovery, and (4) Plaintiff's cross-motion for leave to amend his Complaint. (Dkt. Nos. 39, 42.)

On September 19, 2008, United States Magistrate Judge George H. Lowe filed a Report-Recommendation recommending that Defendants' motion for summary judgment be granted in part and denied in part, and that Plaintiff's three cross-motions be denied. (Dkt. No. 47.) On October 3, 2008, Plaintiff filed Objections to that Report-Recommendation. (Dkt. No. 49.) For the reasons set forth below, Magistrate Judge Lowe's Report-Recommendation is accepted as modified by the withdrawal of certain of Plaintiff's claims and his introduction of new evidence on appeal.


When specific objections to a magistrate judge's Report-Recommendation are made, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).1 When only general objections are made, the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999). Similarly, when a party makes no objection to a portion of a Report-Recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducting the appropriate review, the 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).


Under Fed.R.Civ.P. 56, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ... [record] which it believes demonstrate the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed.R.Civ.P. 56(e)(2).

A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. As a result, "[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) [citation omitted]; see also Fed.R.Civ.P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts" [citations omitted]. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. [citation omitted].

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute—even if that nonmoving party is proceeding pro se.2 (This is because the Court extends special solicitude to the pro se litigant in part by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.)3 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.4 For this reason, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement5—even where the nonmoving party was proceeding pro se in a civil rights case.6


In his lengthy Objections to Magistrate Judge Lowe's Report-Recommendation, Plaintiff offers specific objections to the majority of Magistrate Judge Lowe's recommendations. (Compare Dkt. No. 47 with Dkt. No. 49.) The only recommendations to which Plaintiff does not object are as follows: (1) the recommendation that Plaintiff's excessive-force claim against Defendant McAdam not be dismissed at this time; (2) the recommendation that Plaintiff's failure-to-protect claim against Defendant Snyder not be dismissed at this time; (3) the recommendation that Plaintiff's claim under Article 1, Section 6 of the New York State Constitution be dismissed; and (4) the recommendation that Plaintiff's access-to-courts claims against Defendants Emrich and Don be dismissed. (Dkt. No. 47, at 457-58, 467-68, 500-02.) As a result, the Court reviews these last four recommendations for clear error, and it reviews the remaining recommendations de novo. After applying the relevant standard of review, and conducting a careful review of all of the papers in this action (including Magistrate Judge Lowe's Report-Recommendation and Plaintiff's Objections),7 the Court adopts Magistrate Judge Lowe's Report-Recommendation as modified by Plaintiff's withdrawal of certain of his claims and his introduction of new evidence in his objections. More specifically, the Court issues the following 21 rulings.

Excessive Force Claims

1. Plaintiff's excessive-force claim against Defendant Cushman is not dismissed. Although Plaintiff admits that he did not hear or see Defendant Cushman as he was actually being frisked or subjected to the use of force,8 the Court finds that there is a genuine issue of material fact as to whether or not Defendant Cushman was present during and/or participated in the (alleged) assault.9 This is largely because in his Objections, Plaintiff adequately brings to the Court's attention the portion of his deposition transcript in which he testified that, after the use of force was complete, he turned around and saw that "all of the officers" were present in the room. (Dkt. No. 49, at 13.)

As an initial matter, the manner in which Plaintiff presented the citation to this evidence to Magistrate Judge Lowe was to bury it in a 40-page, 139-paragraph, single-spaced, handwritten document that attempted to serve as the following four things at the same time: (1) a partial Rule 7.1 Response (and counter-statement of facts);10 (2) a Rule 7.1 Statement of Material Facts (in support of Plaintiff's cross-motion for summary judgment); (3) a declaration; and (4) a document containing legal arguments (including ad hominem attacks on defense counsel). (See Dkt. No. 42, Part 1.) Such a document is in blatant violation of numerous local rules that function to separate argument from factual assertions, and factual assertions from factual denials, and factual denials from record evidence (in order to enable the Court to fairly and efficiently decide the motion for summary judgment before it).11 Plaintiff had adequate notice of Local Rule 7.1 before he violated it.12 In addition, Plaintiff clearly understood the consequences of failing to properly oppose Defendants' motion because he applied for (and was granted) an extension of time by which to file his response to Defendants' motion for summary judgment. (Dkt. No. 40.)13

Under the circumstances, Magistrate Judge Lowe did not abuse his discretion in refusing to excuse Plaintiff's rule violations given (1) the prior notice that Plaintiff had received about the consequences of failing to properly oppose Defendants' motion for summary judgment, (2) the extension of time that Plaintiff received to file his response to Defendants' motion for summary judgment, (3) Plaintiff's prior...

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