Dallio v. Hebert
| Decision Date | 28 July 2009 |
| Docket Number | No. 9:06-CV-0118 (GTS/GHL).,9:06-CV-0118 (GTS/GHL). |
| Parties | Thomas DALLIO, Plaintiff, v. C.O. Jerry HEBERT; C.O. Scott Santamore; C.O. Hank Herrmann; C.O. Sheila Suave; C.O. Charles Smith; C.O. Andrew Streeter, C.O. Judy Warriner; C.O. Royce Curbine; Sgt. Daniel King; Sgt. Michele Wilson; Lt. Donald Quinn; Nurse Susan Ryan; Nurse Lillian Riley; Nurse Kimberly Perrea; Lt. Roger Wright; Capt. Steven Racette; Dept. Supt. John Donelli; I.G. Investigator Benjamin Iozetti; and D.A. Investigator Darcy Curnell, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Thomas Dallio, Malone, NY, pro se.
Hon. Andrew M. Cuomo, Attorney General for the State of New York, Richard Lombardo, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
DECISION and ORDER
Currently before the Court in this pro se prisoner civil rights action filed by Thomas Dallio ("Plaintiff") are (1) Defendants' motion for partial summary judgment (Dkt. No. 71), (2) United States Magistrate Judge George H. Lowe's Report-Recommendation recommending that Defendants' motion be granted in part and denied in part (Dkt. No. 79), (3) Defendants' Objection to the Report-Recommendation (Dkt. No. 80), and (4) Plaintiff's Objection to the Report-Recommendation. (Dkt. No. 81.) For the following reasons, the Report-Recommendation is accepted and adopted as modified below, and Defendants' motion is granted in its entirety.
On January 30, 2006, Plaintiff filed his Complaint in this action, asserting claims against the above-captioned nineteen (19) DOCS employees ("Defendants"). (Dkt. No. 1.) Generally, in his Complaint, Plaintiff alleges civil rights violations under the First and Eighth Amendments, including claims of excessive force, inadequate medical care, deliberate indifference, and conspiracy on the part of prison officials for filing false reports in response to his grievance claims. (Id.)
On March 10, 2008, Defendants filed a motion for partial summary judgment, arguing (1) that the Complaint should be dismissed against all Defendants in their official capacities, (2) that Plaintiff's pendent state law claims are barred by New York State Corrections Law Section 24, (3) that Defendants Ryan, Riley, and Perrea provided constitutionally sufficient medical care, (4) that Defendants Wright, Racette, Donelli, and Iozetti were not personally involved in the alleged constitutional deprivations, and (5) that the claims against Defendants Ryan, Riley, Perrea, Wright, Racette, Donelli, and Iozetti are barred by the doctrine of qualified immunity. (Dkt. No. 71, Part 17.) In support of their motion, Defendants assert the following four arguments: (1) Plaintiff failed to establish a medical indifference claim against Defendants Ryan, Riley, and Perrea; (2) Plaintiff failed to show personal involvement of several defendants; (3) Plaintiff's state law claims are barred under New York State Corrections Law Section 24; and (4) Defendants are entitled to qualified immunity. (Dkt. No. 71, Part 17.)
On April 9, 2008, Plaintiff submitted his response in opposition to Defendants' motion. (Dkt. No. 72.) In his response, Plaintiff (1) conceded that the Complaint should be dismissed against all Defendants in their official capacities, (2) conceded that the pendent state law claims must be dismissed, (3) argued that there are genuine issues of material fact that preclude summary judgment for Defendants on the issue of deliberate indifference by Defendants Riley, Ryan, and Perrea, (4) argued that Defendants Wright, Racette, Donelli, and Iozetti were personally involved, and (5) argued that Defendants Ryan, Riley Perrea, Wright, Racette, Donelli, and Iozetti are not entitled to qualified immunity. (Id.)
On March 24, 2009, Magistrate Judge Lowe issued a Report-Recommendation recommending the dismissal of (1) Plaintiff's claims against all Defendants in their official capacities, (2) the pendent state law claims, and (3) all claims against Defendants Ryan, Riley, and Perrea. (Dkt. No. 79.) Magistrate Judge Lowe further recommended that the action be dismissed as to Defendant Curnell for failure to effect service in accordance with F.R.C.P. Rule 4(m). (Id.) Finally, Magistrate Judge Lowe recommended that the claims against all other Defendants in their individual capacities proceed to trial. (Id.) Familiarity with the grounds of Magistrate Judge Lowe's Report-Recommendation is assumed in this Decision and Order.
On April 8, 2009, both Plaintiff and Defendants filed their Objections to the Report-Recommendation. (Dkt. Nos. 80, 81.)
When specific objections are made to a magistrate judge's report-recommendation, 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 to a magistrate judge's report-recommendation, the Court reviews the report-recommendation 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).2 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).
Magistrate Judge Lowe correctly recited the legal standard governing a motion for summary judgment as well as a motion to dismiss for failure to state a claim. (Dkt. No. 79, at 6-18.) As a result, these standards are incorporated by reference in this Decision and Order.
In their Objections, Defendants argue that Magistrate Judge Lowe incorrectly determined (1) that Defendants Wright, Racette, Donelli and Iozetti were personally involved in violating Plaintiff's constitutional rights, and (2) that these Defendants are not entitled to qualified immunity. (Dkt. No. 80.) More specifically, Defendants argue (for the first time) that the second prong of the test used to determine personal involvement of a supervisory official in a constitutional violation cannot apply to the allegations in Plaintiff's Complaint because, according to Defendants, supervisory liability under the second prong only occurs when a supervisor fails to remedy a wrong after being informed of the wrong. (Id.) In support of their argument that the second prong of the personal involvement test only applies to allegations of a supervisor's failure to remedy ongoing constitutional violations, Defendants argue (again, for the first time) that it is impossible to remedy a wrong consisting of a single isolated incident, the occurrence of which there was no advanced notice. (Id.) Because Plaintiff does not allege that Defendants Wright, Racette, Donelli and Iozetti were aware of the possibility of Plaintiff being harmed prior to February 4, 2003, Defendants argue that these Defendants, who were involved (in some capacity) in investigating the incident of February 4, 2003, cannot be found to have been personally involved in the alleged constitutional violations that Plaintiff suffered. (Id.)
As explained above in Part II.A. of this Decision and Order, "on de novo review, a district court will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance." Cusamano v. Sobek, 604 F.Supp.2d 416, 425 n. 1 (N.D.N.Y.2009) (Suddaby, J.) (citations omitted). "Moreover, de novo review of a magistrate's Report and Recommendation is not warranted by objections that simply attempt to engage the district court in a rehashing of the same arguments set forth in the original petition." Kennedy v. Adamo, 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation omitted). "Thus, when a party makes only conclusory or general objections, or simply reiterates his original arguments, the court reviews the Report and Recommendation only for clear error." Adamo, 2006 WL 3704784, at *1 (internal quotation marks and citation omitted). However, 28 U.S.C. § 636(b)(1) affords a district court the authority to consider new evidence, as well as case law presented for the first time, in making its de novo determination after an objection is filed. Id.; see also 28 U.S.C. § 636(b)(1).
Here, Defendants do not seek to introduce new evidence, but rather seek to clarify, based on Magistrate Judge Lowe's Report-Recommendation, that Defendants Wright, Racette, Donelli and Iozetti were not personally involved in the constitutional violations that Plaintiff allegedly suffered, because it is not possible for them to remedy a wrong arising out of a single incident, the occurrence of which they had no advanced notice. (Dkt. No. 80.) The Court is mindful of the fact that, if this argument had merit and the Court decides to not consider it at this stage of the action, that decision may result in these four Defendants having to be hailed into court for trial only to be dismissed at the close of Plaintiff's case. As a result, in the interest of judicial economy, the Court will consider this argument below.
Plaintiff's Complaint alleges that the supervisory officials, through conducting a...
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