Tavares v. Amato

• Decision Date: 18 June 2013
• Docket Number: No. 9:12–CV–563.,9:12–CV–563.
• Citation: 954 F.Supp.2d 79
• Parties: Peter J. TAVARES, Plaintiff, v. Michael J. AMATO, Sheriff; Michael Franko, Jail Administrator; Defendants.
• Court: U.S. District Court — Northern District of New York

954 F.Supp.2d 79

Peter J. TAVARES, Plaintiff,

v.Michael J. AMATO, Sheriff; Michael Franko, Jail Administrator; Defendants.

No. 9:12–CV–563.

United States District Court, N.D. New York.

June 18, 2013.

Peter J. Tavares, Fultonville, NY, pro se.

Law Office of Theresa Puleo, Murry S. Brower, Esq., of Counsel, Albany, NY, for defendants.

DECISION & ORDER

THOMAS J. McAVOY, Senior District Judge.

I. INTRODUCTION

This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court to the Hon. Christian F. Hummel, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).

In his May 14, 2013 Report–Recommendation and Order, Magistrate Judge Hummel recommends that Plaintiff's motion for summary judgement (Dkt. No. 23) be DENIED and that Defendants' cross-motion for summary judgment (Dkt. No. 26) be GRANTED with respect to Tavares' First and Eighth Amendment claims, as well as any claims for due process stemming out of Tavares' initial segregation for five days during classification, but DENIED in all other respects. Plaintiff has filed an objection to Magistrate Judge Hummel's recommendations. See Dkt. No. 37.

II. STANDARD OF REVIEW

When objections to a magistrate judge's report and recommendation are lodged, the district court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See28 U.S.C. § 636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997) (The Court must make a de novo determination to the extent that a party makes specific objections to a magistrate's findings.). “[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument.” Machicote v. Ercole, 2011 WL 3809920, at *2 (S.D.N.Y., Aug. 25, 2011) (citations and interior quotation marks omitted); DiPilato v. 7–Eleven, Inc., 662 F.Supp.2d 333, 340 (S.D.N.Y.2009) (same).

General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey, 554 F.Supp.2d 301, 306 n. 2 (N.D.N.Y.2008); see Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).

III. DISCUSSION

On May 28, 2013, Plaintiff filed a letter stating: “I am lodging my objections to the foregoing Report and would like APPELLATE REVIEW and would like to know what the appeal process would be for my case.” See dkt # 37. Insofar as Plaintiff requests information regarding the appellate process, id., the Court refers him to the “Pro Se Handbook” pages 46–48 on “Appeals” and Fed. R.App. P. 4. Insofar as Plaintiff requests information regarding the report-recommendation objection process, the Court refers him to the “Pro Se Handbook” pages 24–25 regarding “Objections to a Magistrate Judge's Report–Recommendation” and 28 U.S.C. 636(b)(1). To the extent Plaintiff is asserting that he should be granted additional time to file objections to Magistrate Judge Hummel's Report–Recommendation and Order, that position is rejected. Plaintiff is presumed to be aware of the time period and procedure for filing such objections, see Edwards v. INS, 59 F.3d 5, 8 (2d Cir.1995) ( “While a pro se litigant's pleadings must be construed liberally, ... pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.”); he filed a document which purportedly constitutes his general “objections” to the Report–Recommendation and Order, thereby indicating his knowledge of the time period and procedure for such purposes; and he offers no valid basis for an extension of the time period for filing objections. Consequently, any request for additional time to file objections is denied. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975) (“The right of self-representation is not a license ... not to comply with relevant rules of procedural and substantive law.”).

Plaintiff fails to make specific objections to Magistrate Judge Hummel's report. Accordingly, the Court reviews the Report–Recommendation and Order for clear error, and finds none. The Court accepts and adopts Magistrate Judge Hummel's recommendations for the reasons stated in his thorough report.

IV. CONCLUSION

For the reasons discussed above, the Court accepts and adopts Magistrate Judge Hummel's recommendations for the reasons stated in his report. Accordingly, Plaintiff's motion for summary judgement (Dkt. No. 23) is DENIED. Defendants' cross-motion for summary judgment (Dkt. No. 26) is GRANTED with respect to Tavares' First and Eighth Amendment claims, as well as any claims for due process stemming out of Tavares' initial segregation for five days during classification, but DENIED in all other respects. Tavares' First and Eighth Amendment claims, as well as any claims for due process stemming out of Tavares' initial segregationfor five days during classification, are DISMISSED.

IT IS SO ORDERED.

REPORT–RECOMMENDATION AND ORDER¹

CHRISTIAN F. HUMMEL, United States Magistrate Judge.

Plaintiff pro se Peter J. Tavares (“Tavares”), an inmate recently released from custody, brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, the Montgomery County Sheriff and Jail Administrator, violated his constitutional rights under the First and Fourteenth Amendments. Compl. (Dkt. No. 1). Presently pending are (1) Tavares' motion for summary judgment and (2) defendants' cross-motion for summary judgment both pursuant to Fed.R.Civ.P. 56. Dkt. Nos. 23, 26. Both motions are opposed. Dkt. Nos. 26, 29. For the following reasons, it is recommended that (1) Tavares' motion be denied and (2) defendants' motion be granted in part and denied in part.

I. Background

A. Involuntary Protective Custody

Revised in January 2010, Montgomery County Correctional Facility (“Montgomery”) had a specific policy regarding administrative segregation for protective custody. Dkt. No. 26–1 at 81. After an inmate had undergone screening and classification, he could be assigned to protective custody, being locked in his cell for twenty-three hours a day for a sixty day period of time. Id. at 84. However, the inmate could seek review of said classification, through a written request to the jail administrator, after sixty days provided “there [wa]s no further threat to [the inmate's] safety ....” Id. If such a threat remained, the inmate's situation may be re-evaluated every thirty days until such time as the threat dissipated. Id.

On November 3, 2011, Tavares entered Montgomery after his parole was revoked. Tavares Aff. (Dkt. No. 23–1 at 1–2) at 1; Franko Aff. (Dkt. No. 26 at 47–53) ¶ 2. Upon arrival, all inmates are processed and evaluated for placement in the appropriate housing unit consistent with the policy outlined above. Franko Aff. ¶ 3; Id. ¶ 6 (explaining that classification officers consider an inmate's “past criminal history [and] ... information if that person has been in the jail on other occasions,” as well as interviewing the inmate). With respect to Tavares, his classification was determined after evaluating “the charges pending and the past history of sex-related based offenses which involved violence, all based on the system established by the jail ... to make the classification as objective as possible ....” Franko Aff. ¶ 4; see also Dkt. No. 26 at 58 (inmate classification sheet); Dkt. No. 26–1 at 6–7 (offender details).

After spending five days undergoing classification, on November 8, 2011, Classification Officer Payne administratively segregated Tavares into Involuntary Protective Custody (“IPC”) due to his sex offender status. Compl. at 5; Tavares Aff. at 1; Franko Aff. ¶¶ 3–4; see also Dkt. No. 26 at 58–59 (concluding after filling out inmate classification sheet that Tavares required IPC for his own personal safety); Dkt. No. 29 at 18 (same). As a sex offender, Tavares was “considered to be in a group that most likely may be victimized and was segregated from inmates housed in the general population.” Franko Aff. ¶ 4. When he was transferred to IPC, Tavareswas given a copy of the form which indicated his classification and the reasons for such, which he refused to sign. Franko Aff. ¶ 4; Dkt. No. 26 at 60.

“In the late fall of 2010 and continuing into the winter and spring of 2011 [ ] the inmate population of Montgomery ... was growing[; thus] the Sheriff and [Administrator] began to discuss how the rising population might impact the safety of inmates and ... of corrections officers assigned to the various pods ....” Franko Aff. ¶ 8. Specifically during this time period, there was “a rise in the population of sex offenders[, which] ... was a concern given that sex offenders are often victimized in a correction setting when housed in the general population.” Franko Aff. ¶ 9. This also caused a concern for the safety of the correctional staff “who intervene to break up fights and provide a higher level of protection to the vulnerable population.” Franko Aff. ¶ 9.

While in IPC, it is undisputed that Tavares was locked in his cell for twenty-three hours a day, with one hour of recreation during which he could use the phone or shower. Compl. at 4; see also Franko Aff. ¶ 10 (confirming that the sex offenders were locked down for twenty three hours a day because “[w]hile [defendants] would have liked to have given each of the persons housed at the jail the ability to move about the pod, this was not possible because of...