Waters v. Prack

• Decision Date: 30 March 2017
• Docket Number: 9:13-CV-1437 (LEK/DEP)
• Parties: KEITH WATERS, Plaintiff, v. ALBERT PRACK, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

KEITH WATERS, Plaintiff,
v.
ALBERT PRACK, et al., Defendants.

9:13-CV-1437 (LEK/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 30, 2017

DECISION AND ORDER

I. INTRODUCTION

This matter comes before the Court following a Report-Recommendation filed on February 24, 2017, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 123 ("Report-Recommendation"). Pro se plaintiff Keith Waters and Defendants timely filed Objections. Dkt. Nos. 124 ("Plaintiff's Objections"), 125 ("Defendants' Objections").

II. LEGAL STANDARD

Within fourteen days after a party has been served with a copy of a magistrate judge's report-recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306-07, 306 n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)

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("[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."). "A [district] judge . . . 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). Otherwise, a court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.

III. DISCUSSION

A. Defendants' Objections

Defendants object to Judge Peebles's finding that summary judgment was not appropriate with respect to Waters's First Amendment retaliation claim against defendant A.W. Dirie. Defs.' Objs. at 1. According to Defendants, the evidence is overwhelming that Dirie did not remove Waters from his position in the law library, and that Deputy Superintendent for Programs Marie Hammond, who is not a defendant in this case, was in fact responsible for his removal. Id. Defendants also suggest that because Waters was removed from the position before Dirie received any complaints from Waters, "there [was] no temporal proximity giving rise to a question regarding the reason for the removal." Id. at 2. The question is close, but the Court agrees with Judge Peebles's recommendation that it deny Defendants' motion for summary judgment on this issue.

Defendants point to two pieces of evidence suggesting that Dirie did not remove Waters from the law library position. First, Dirie himself says he was not involved. Id. at 1-2. Second, Waters wrote Dirie a letter on February 28, 2013, complaining that he had been removed from

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his position at the law library by Hammond. Id. at 2. The only evidence Waters has offered to suggest that Dirie removed him from the position is his own sworn testimony to that effect. Dkt. No. 42 ("Verified Amended Complaint") ¶ 46.¹ Waters's evidence on this point certainly appears weaker than Defendants'. But as Judge Peebles pointed out in a different case, "the weighing of such competing evidence, no matter how weak plaintiff's claim may appear, presents a question of credibility that must be left to the trier of fact." Cirio v. Lamora, No. 08-CV-431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010), adopted by 2010 WL 1063864 (N.D.N.Y. Mar. 22, 2010). And while it is true that the only piece of evidence Waters offers on this score is his own self-serving testimony, that "can establish a genuine dispute of fact so long as [it] does not contradict the witness's prior testimony." Dye v. Kopiec, No. 16-CV-2952, 2016 WL 7351810, at *3 (S.D.N.Y. Dec. 16, 2016) (collecting cases). The affidavit does differ from the letter in suggesting that Dirie, rather than Hammond, removed Waters from the law library position, but Waters was not testifying when he wrote the letter, so these two pieces of conflicting evidence do not prevent the Court from allowing Waters to establish a genuine dispute of material fact on the basis of his self-serving testimony.²

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Defendants also argue that Dirie could not have retaliated against Waters because the alleged adverse action—Waters's removal from the law library...