Harding v. Venettozzi

ERIC HARDING, Plaintiff, v. DONLAD VENETTOZZI, Acting Director ofSHU; RANDY LAMORA, Hearing Officer Defendants.

9:13-CV-1162 (MAD/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

January 26, 2015

APPEARANCES:

ERIC HARDING

08-A-3546

Auburn Correctional Facility

Post Office Box 618

Auburn, New York 13021

Plaintiff pro se

OFFICE OF THE NEW YORK

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants

OF COUNSEL:

JOSHUA L. FARRELL, AAG

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff pro se Eric Harding (hereinafter "Plaintiff"), an inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that Defendants Donald Venettozzi and Lieutenant Randy LaMora violated his rights under the Fourteenth Amendment. See generally Dkt. No. 1. Presently pending is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. No. 23-3. On November 20, 2014, MagistrateJudge Hummel submitted a Report-Recommendation and Order recommending that the Court grant Defendants' motion for summary judgment. See Dkt. No. 35.

Currently before the Court are Plaintiff's objections to Magistrate Judge Hummel's Report-Recommendation and Order. See Dkt. No. 38.

II. BACKGROUND

A. Factual Background

For a complete recitation of the factual background, refer to Magistrate Judge Hummel's Report-Recommendation and Order. See Dkt. No. 35 at 2-6.

B. Magistrate Judge Hummel's November 20, 2014 Report-Recommendation and Order

In his November 20, 2014 Report-Recommendation and Order, Magistrate Judge Hummel recommended that the Court grant Defendants' motion for summary judgment. See id. Magistrate Judge Hummel determined that, as to Plaintiff's procedural due process claim, Plaintiff had established a protected liberty interest, because the 365 day sentence in Special Housing Unit ("SHU") was far higher than a sentence of intermediate duration. Id. at 10. Magistrate Judge Hummel then found that Plaintiff received proper written notice in advance of the Tier III disciplinary hearing. Id. at 11. Next, Magistrate Judge Hummel recommended that the Court grant Defendants' motion in regard to the denial of witnesses, because Defendant LaMora "detailed his reasons for rejecting the nurse to testify at the hearing itself, and explained why the five inmates did not testify in Lamora's affidavit supplied in response to the instant suit." Id. at 13. Magistrate Judge Hummel then found that Defendant LaMora acted as a fair and impartial hearing officer despite Plaintiff's claims to the contrary. Id. at 17. Plaintiff relied on a singlestatement made by Defendant LaMora during the hearing, where he "articulated his point of view[,]" to prove that Defendant LaMora was not fair and impartial. Id. at 15. Further, the Report-Recommendation and Order found that Defendant LaMora had reliable evidence of Plaintiff's guilt, and that Plaintiff had given inconsistent testimony of his version of the facts in the past. Id. at 15-16. Finally, Magistrate Judge Hummel found that Plaintiff received a written statement of the hearing disposition, the final procedural due process requirement in this situation. Id. at 17.

Magistrate Judge Hummel also recommended that the Court grant Defendants' motion for summary judgment based on qualified immunity, because Plaintiff failed to established that Defendants violated his Fourteenth Amendment rights. Id. at 18.

C. Plaintiff's objections

Plaintiff raises three objections to the Report-Recommendation and Order. See Dkt. No. 38.

First, Plaintiff argues that denial of his requested witnesses was a violation of procedural due process, because 7 N.Y.C.R.R. § 254.5 (2015) allows witnesses to have their testimony recorded outside the presence of the inmate. Dkt. No. 38 at 10. He then cites an opinion from the Tenth Circuit, Ramer v. Kirby, 936 F.2d 1102 (10th Cir. 1991), that held a refusal to call witnesses is a denial of due process, and is an especially important right when it is an inmate's word against the word of a prison guard. Id. at 11. Finally, Plaintiff cites an Eighth Circuit case, Graham v. Baughman, 772 F.2d 441 (8th Cir. 1985), for the proposition that a prisoner is denied due process when a hearing officer refuses to hear testimony that corroborates the witness' own story. Id. at 9.

Second, Plaintiff again objects to the recommended dismissal of Defendant LaMora, who Plaintiff claims was not an impartial and fair hearing officer due to statements made by Defendant LaMora during the hearing. Id. at 12. Plaintiff cites Patterson v. Coughlin, 905 F.2d 564 (2d Cir. 1990), as an example of how a hearing officer may violate procedural due process rights by acting in a manner that is not fair and impartial. Id. at 13.

Third, Plaintiff objects to the recommendation finding that Defendants are entitled to qualified immunity. Id. at 16. Plaintiff claims that Defendant Venettozzi reversed and expunged Plaintiff's disciplinary hearing decision due to failure to submit an opposition brief in his Article 78 proceeding, after he had already served his SHU sentence. Id. at 16. Plaintiff also claims that Defendant Venetozzi's failure to reverse the disciplinary decision when he was first made aware of the result negates a qualified immunity defense. Id. at 17.

III. DISCUSSION

A. Standard of review

1. Review of a report-recommendation and order

When a party files specific objections to a magistrate judge's report-recommendation, 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." 28 U.S.C. § 636(b)(1) (2006). When a party, however, files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made bythe magistrate judge." 28 U.S.C. § 636(b)(1) (2006).

A litigant's failure to file objections to a magistrate judge's report-recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and former 6(e) of the Federal Rules of Civil Procedure).

2. Summary judgment standard

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c) (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2502, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

3. 42 U.S.C. § 1983

Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y. 1991) (citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied, 445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a section 1983 action, he must establish a causal...