Opinion
9:19-cv-0057 (BKS/ATB)
12-01-2020
J'KENDRIC JIRELLE AGEE, Plaintiff, v. TROY MITCHELL, MR. KEITH E. VINCENT, II, MRS. WADE, and JOHN DOES # 9 and # 11, Defendants.
Appearances: Plaintiff, pro se J'Kendric Jirelle Agee 7833A Niagara County Jail 5526 Niagara Street Exd Lockport, NY 14094 For Defendants Mitchell and Vincent: Letitia James Attorney General of the State of New York Aimee Cowan Assistant Attorney General New York State Attorney General's Office 300 South State Street, Suite 300 Syracuse, NY 13202 For Defendant Wade: The Law Firm of Frank W. Miller, PLLC Frank W. Miller Charles C. Spagnoli Jason A. Richman 6575 Kirkville Road East Syracuse, NY 13057
Appearances:
Plaintiff, pro se
J'Kendric Jirelle Agee
7833A
Niagara County Jail
5526 Niagara Street Exd
Lockport, NY 14094 For Defendants Mitchell and Vincent:
Letitia James
Attorney General of the State of New York
Aimee Cowan
Assistant Attorney General
New York State Attorney General's Office
300 South State Street, Suite 300
Syracuse, NY 13202 For Defendant Wade:
The Law Firm of Frank W. Miller, PLLC
Frank W. Miller
Charles C. Spagnoli
Jason A. Richman
6575 Kirkville Road
East Syracuse, NY 13057 Hon. Brenda K. Sannes, United States District Judge :
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff pro se J'Kendric Jirelle Agee brought this action against Defendants under 42 U.S.C. § 1983 for alleged violations of Plaintiff's constitutional rights while he was incarcerated at the Auburn Correctional Facility and the Cayuga County Jail. (Dkt. No. 14). On August 18, 2020, Defendants Mitchell and Vincent filed a motion for summary judgment seeking dismissal of Plaintiff's complaint with prejudice. (Dkt. No. 63). The motion was fully briefed, with a response from Plaintiff and a reply from Defendants. (Dkt. Nos. 71, 72). This matter was referred to United States Magistrate Judge Andrew T. Baxter who, on October 22, 2020, issued a Report-Recommendation recommending that the motion for summary judgment be granted in part and denied in part. Specifically, Magistrate Judge Baxter recommended that the motion be denied as to Plaintiff's Eighth Amendment claim against Defendant Mitchell and granted in all other respects, including dismissal of the remaining John Doe defendants, Doe No. 9 and Doe No. 11. (Dkt. No. 76, at 32-33).
Defendant Wade filed a motion for summary judgment on August 31, 2020. (Dkt. No. 68). Plaintiff did not respond to the motion despite having received notice of the consequences of failing to respond. (Dkt. No. 69). This matter was referred to Magistrate Judge Baxter who, on October 26, 2020, issued a Report-Recommendation recommending that Defendant Wade's motion for summary judgment be granted and that Plaintiff's First Amendment retaliation claim against Defendant Wade be dismissed with prejudice because Plaintiff had failed to exhaust his administrative remedies and, alternatively, because Plaintiff failed "to establish a causal connection between the protected conduct and the claimed retaliatory action." (Dkt. No. 77, at 9-11, 15).
In both Report-Recommendations, Magistrate Judge Baxter advised the parties that under 28 U.S.C. § 636(b)(1), they had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen days would preclude appellate review. (Id. at 16; Dkt. No. 76 at 33). Plaintiff filed a letter dated November 5, 2020, stating that he "objects to the report written by" Magistrate Judge Baxter "in it's [sic] entirety in relation to the granting of the defendants [sic] summary judgment." (Dkt. No. 78, at 1). Plaintiff did not identify any specific objection to either report. He stated that he "would like to take up his grievances with the United States Court of Appeals for the bettering of both time and economy of this judicial system." (Id.). On November 25, 2020, Plaintiff filed a notice of appeal to the United States Court of Appeals for the Second Circuit from the Report-Recommendation concerning Defendants Mitchell and Vincent. (Dkt. No. 82).
This Court has jurisdiction to consider the Report-Recommendation concerning Defendants Mitchell and Vincent despite Plaintiff's filing of a Notice of Appeal with the Second Circuit because the Report-Recommendation was not a final order or judgment and the notice of appeal was clearly premature. Demuth v. Cutting, No. 18-795, 2020 WL 918739, at *1 n. 1, 2020 U.S. Dist. LEXIS 32588, at *1 n. 1 (N.D.N.Y. Feb. 26, 2020) (citing United States v. Rodgers, 101 F.3d 247, 252 (2d Cir. 1996) and Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 527 (2d Cir. 1990)). --------
Defendants have not filed any objections to the Report-Recommendations. Defendants responded to Plaintiff's letter, asserting that it was not an adequate objection under Fed. R. Civ. P. 72. (Dkt. Nos. 79, 81). Defendants Mitchell and Vincent also argued that Plaintiff's objection was untimely. (Dkt. No. 81). For the reasons set forth below, the Report-Recommendations are adopted in their entirety.
II. STANDARD OF REVIEW
This court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). "A proper objection is one that identifies the specific portions of the [report-recommendation] that the objector asserts are erroneous and provides a basis for this assertion." Kruger v. Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks omitted); see N.D.N.Y. Local Rule 72.1(c) (objections must "specifically identify the portion of the proposed findings, recommendations, or report to which [the party] has an objection and the basis for the objection"). Properly raised objections must be "specific and clearly aimed at particular findings" in the report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009). "[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 . . . ." Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920, at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25, 2011) (citation omitted). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id. To the extent a party makes "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments" in the original submission, the Court will only review for clear error. Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) (citations omitted).
III. DISCUSSION
Plaintiff has failed to properly preserve an objection to either Report-Recommendation. His letter objecting to "the report" "in its entirety in relation to the granting of the defendants summary judgment" fails to specifically identify an objection and the basis for the objection. Machicote, 2011 WL 3809920, at *2, 2011 U.S. Dist. LEXIS 95351, at *4; see also Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). The Court's review is therefore for clear error. Having reviewed both of Magistrate Judge Baxter's thorough Report-Recommendations for clear error and found none, the Court adopts the Report-Recommendations in their entirety.
IV. CONCLUSION
For these reasons, it is hereby
ORDERED that Magistrate Judge Baxter's Report-Recommendations (Dkt. Nos. 76 and 77) are ADOPTED in all respects; and it is further
ORDERED that Defendant Wade's motion for summary judgment (Dkt. No. 68) is GRANTED and Plaintiff's amended complaint is DISMISSED in its entirety with prejudice as against Defendant Wade; and it is further
ORDERED that the motion for summary judgment filed by Defendants Vincent and Mitchell (Dkt. No. 63) is DENIED as to Plaintiff's Eighth Amendment claim against Defendant Mitchell, and that the motion for summary judgment is otherwise GRANTED, and that the amended complaint is DISMISSED in all other respects, including DISMISSED against the remaining Doe defendants (John Doe No. 9 and John Doe No. 11); and it is further
ORDERED that the Clerk serve a copy of this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED. Dated: December 1, 2020
Syracuse, New York
/s/_________
Brenda K. Sannes
U.S. District Judge