Summary
finding allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment
Summary of this case from Sanders v. Corr. Kevin St. MaryOpinion
9:10-CV-610 (FJS/CFH)
10-28-2014
CHARLES MCALLISTER also known as CHARLES MCCALLISTER, Plaintiff, v. HAROLD CALL, Vocational Supervisor, Mohawk Correctional Facility, Defendant.
APPEARANCES CHARLES MCALLISTER Westbury, New York 11590 Plaintiff pro se OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL The Capitol Albany, New York 12224 Attorneys for Defendant OF COUNSEL KEITH J. STARLIN, AAG
APPEARANCES
CHARLES MCALLISTER
Westbury, New York 11590
Plaintiff pro se OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant
OF COUNSEL
KEITH J. STARLIN, AAG
SCULLIN, Senior Judge
ORDER
Currently before the Court are Magistrate Judge Hummel's October 9, 2014 Report-Recommendation and Order, see Dkt. No. 81, and Plaintiff's objections thereto, see Dkt. No. 83.
Plaintiff, a former inmate who was, at all relevant times, in the custody of the New York Department of Corrections and Community Supervision, commenced this action pursuant to 42 U.S.C. § 1983. In his original complaint, Plaintiff asserted claims against Brian Fischer, Lucien J. LeClaire, Patricia LeConey, Carol Woughter, and John and Jane Does. Defendants moved for summary judgment. See Dkt. No. 49. By Report-Recommendation and Order dated July 6, 2012, Magistrate Judge Homer recommended that this Court dismiss all claims against the named individuals and direct Plaintiff to join Harold Call as a Defendant. See Dkt. No. 55. This Court accepted the Report and Recommendation and Order in its entirety and directed Plaintiff to file an amended complaint to "include only one cause of action a procedural due process claim in connection with his disciplinary hearing and one Defendant hearing officer Call." See Dkt. No. 58 at 4-5.
Plaintiff thereafter filed his amended complaint and requested compensatory and punitive damages. See Dkt. No. 64, Amended Complaint at 4. In this amended complaint, Plaintiff alleged that Defendant violated his constitutional rights under the First, Eighth and Fourteenth Amendments. See Dkt. No. 64, Amended Complaint at ¶¶ 33, 34, 43.
On May 9, 2014, Defendant filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Dkt. No. 74. In a Report-Recommendation and Order dated October 9, 2014, Magistrate Judge Hummel recommended that this Court grant Defendant's motion in part and deny his motion in part. See Dkt. No. 81 at 33. Plaintiff filed objections to Magistrate Judge Hummel's recommendations. See Dkt. No. 83.
Where a party makes specific objections to portions of a magistrate judge's report and recommendation, the court conducts a de novo review of those recommendations. See Trombley v. Oneill, No. 8:11-CV-0569, 2011 WL 5881781, *2 (N.D.N.Y. Nov. 23, 2011) (citing Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C)). Where a party makes no objections or makes only conclusory or general objections, however, the court reviews the report and recommendation for "clear error" only. See Salmini v. Astrue, 3:06-CV-458, 2009 WL 1794741, *1 (N.D.N.Y. June 23, 2009) (quotation omitted). After conducting the appropriate review, a district court may decide to accept, reject, or modify those recommendations. See Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. Sept. 29, 2009) (quoting 28 U.S.C. § 636(b)(1)(C)).
Although Plaintiff's objections are, in most respects, general or conclusory, given his pro se status, the Court has conducted a de novo review of Magistrate Judge Hummel's Report-Recommendation and Order. Having completed its review, the Court hereby
ORDERS that Magistrate Judge Hummel's October 9, 2014 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant's motion for summary judgment is GRANTED in part and DENIED in part; and the Court further
ORDERS that Plaintiff's First Amendment claims, his Eighth Amendment claims, and his challenge to the constitutionality of Directive 4913 are DISMISSED; and the Court further
ORDERS that, to the extent that Plaintiff has asserted claims against Defendant in his official capacity, those official-capacity claims are DISMISSED; and the Court further
ORDERS that Defendant's motion for summary judgment is DENIED with respect to Plaintiff's Fourteenth Amendment due process claims and with respect to Defendant's qualified immunity defense; and the Court further
ORDERS that this matter is referred to Magistrate Judge Hummel for all further pretrial matters; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: October 28, 2014
Syracuse, New York
/s/_________
Frederick J. Scullin, Jr.
Senior United States District Court Judge