BRIAN WALKER, Plaintiff, -against- SHEILA VAUGHAN, WARDEN OF GEORGE R. VIERNO CENTER, JOHN DOE, DEPT. OF SECURITY OF GEORGE R. VIERNO CENTER, JOSEPH STANKOVIC, WARDEN OF RIKER'S ISLAND SECURITY, MICHAEL GRAY, WARDEN OF TRANSPORTATION DIVISION, DAVID SCHOENFELD, WARDEN OF GEORGE R. VIERNO CENTER, ANGELA MANZI, DEPT. OF SECURITY OF GEORGE R. VIERNO CENTER, M. RODRIGUEZ, CAPTAIN # 126 OF GEORGE R. VIERNO CENTER, MICHAEL P. JACOBSON, COMMISSIONER OF NYC DEPT. OF CORRECTIONS, RUDOLPH W. GUILIANI, MAYOR OF THE CITY OF NEW YORK, Defendants.



98 Civ. 2662 (RMB)(JCF)



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK



216 F. Supp. 2d 290; 2002 U.S. Dist.



August 15, 2002, Decided

August 16, 2002, Filed



PRIOR HISTORY: [**1] Adopting Magistrate's Document of July 15, 2002, Reported at: 2002 U.S. Dist. .



DISPOSITION: Magistrate judge's report and recommendation adopted in its entirety. Defendants' motion for summary judgment granted.




COUNSEL: For Brian Walker, PLAINTIFF: Brian Walker, MCC, New York, NY USA.



For David Schoenfeld, M Rodriguez, DEFENDANTS: Heidi Grossman, Corporation Counsel of the City of New York, New York, NY USA.



JUDGES: RICHARD M. BERMAN, U.S.D.J.



OPINION BY: RICHARD M. BERMAN



OPINION: [*291]

DECISION AND ORDER



I. Background

Pro se Plaintiff Brian Walker ("Plaintiff" or "Walker") commenced this action on or about January 21, 1998, pursuant to 42 U.S.C. § 1983. Plaintiff alleges, inter alia, that Defendants violated his Eighth and Fourteenth Amendment rights while he was incarcerated at the George R. Vierno Center ("G.R.V.C.") on Riker's Island, New York by: 1) failing to protect him from an attack by other prisoners in a February 11, 1996 shooting incident; 2) employing excessive force against him on October 14, 1997; and 3) transferring him involuntarily, i.e., without due process, to another facility. Second Am. Compl. PP 2-4, 15-19, 23-28, 31-33, 36, 41. On or about February 7, 2002, Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Defs.' Summ. J. Mot.") on Plaintiff's [**2] failure to protect and due process claims (but not on his excessive force claim). United States Magistrate Judge James C. Francis IV, to whom the matter had been referred, issued a report and recommendation on July 15, 2002 ("Report"), recommending that "defendants' motion for summary judgment be granted and the failure to protect and due process claims be dismissed." Report at 14. Plaintiff submitted objections to Judge Francis's Report on July 22, 2002 ("Pl.'s Objections"). For the reasons set forth below, the Court adopts the Report in its entirety and grants Defendants' motion for summary judgment.



II. Standard of Review

When evaluating the report and recommendation of a magistrate judge, the district court may adopt those portions of the report to which no objections have been made and which are not facially erroneous. [*292] Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). Once timely objections are received, the court may accept, reject, or modify, in whole or in part, the findings and recommendations of the magistrate. Fed.R.Civ.P. 72(b); e.g., Deluca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994). [**3] The court "shall make 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)(C) (2002); see N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 79, 73 L. Ed. 2d 598, 102 S. Ct. 2858 (1982). However, "when a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Barratt v. Joie, 2002 U.S. Dist. LEXIS 3453, No. 96 Civ. 0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002) (citations omitted); accord Azumendi v. Roth, 2002 U.S. Dist. LEXIS 4555, No. 99 Civ. 3663, 2002 WL 441283, at *1 (S.D.N.Y. Mar. 20, 2002). Where, as here, the petitioner is pro se, "leniency is generally accorded." Vasquez v. Reynolds, 2002 U.S. Dist. LEXIS 4395, No. 00 Civ. 0862, 2002 WL 417183 at *5 (S.D.N.Y. Mar. 18, 2002) (citation omitted).

Summary Judgment is appropriate when the parties' submissions "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the [**4] initial burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In assessing the motion, the court must draw all factual inferences in favor of the nonmoving party, Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157, 160 (2d Cir. 1999), and inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the moving party meets its burden, the opposing party must then demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson, 477 U.S. at 250.



III. Analysis

The Court has conducted a de novo review of the record herein, including, among other things, the parties' summary judgment submissions, the Report, Plaintiff's Objections, as well as relevant legal authority. The Court finds that the Report is in conformity with the law, is not clearly erroneous, and is supported by the record.

A. Plaintiff's Eighth Amendment Failure to Protect Claim [**5]

Judge Francis's Report concludes that "plaintiff is collaterally estopped by his fraud conviction" from pursuing his failure to protect claim. Report at 9. On September 30, 1999, in United States v. Walker, 1999 U.S. Dist. LEXIS 15257, No. 99 CR 397 (BSJ), Plaintiff was convicted of violating 26 U.S.C. § 5861(d), unlawful possession of a firearm, and 18 U.S.C. § 1341, mail fraud, in connection with an incident in which Walker asked a fellow inmate to shoot him in the arm with an unregistered zip gun that he had illegally acquired. United States v. Walker, 24 Fed. Appx. 57 (2d Cir. 2001). In his Objections to the Report, Plaintiff contends that collateral estoppel does not apply to his failure to protect claim because he did not have a full and fair opportunity to litigate the issue in the criminal matter. n1 Pl.'s Objections [*293] at 5. Walker asserts that "the fact that 'staff' had identified four inmates and removed these inmates from the area as 'suspected perpetrators' ... was not presented as evidence for the jury." Id. at 4-5. Apart from the fact that Plaintiff fails to recount where or how he discovered this [**6] information, "District Courts are on particularly firm footing when rejecting supplemental evidence from a party that fails to explain why [as here] the evidence was not presented to the Magistrate Judge." A.V. by Versace, Inc. v. Gianni Versace, S.p.A, 191 F. Supp. 2d 404, 407 (S.D.N.Y. 2001) (citing Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994); Pan Am. World Airways, Inc. v. Int'l Bhd. Of Teamsters, 894 F.2d 36, 40 n.3 (2d Cir. 1990)). The Court is exercising its discretion to reject information not presented to Magistrate Francis.







n1 However, in his Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Opp'n Summ. J."), Walker concedes, "Plaintiff's federal civil rights action and the federal court criminal prosecution and conviction of the plaintiff were based only on the facts and circumstances of the February 11, 1996 incident." Pl.'s Opp'n Summ. J. at 6; see id. at 4, Defs.' Reply at 3.



Moreover, [**7] collateral estoppel forecloses a second litigation where, as here: "(1) the issues in both proceedings [are] identical, (2) the issue in the prior proceeding [was] actually litigated and actually decided, (3) there [was] a full and fair opportunity for litigation in the prior proceeding, and (4) the issue previously litigated [was] necessary to support a valid and final judgment on the merits." Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 43 (2d Cir. 1986). In the instant case, Plaintiff's failure to protect claim "was previously litigated in federal court, where the jury rejected the plaintiff's claim that he was attacked by other inmates and instead convicted him [beyond a reasonable doubt] of staging his own shooting in order to commit fraud upon the defendants by filing false legal claims." Report at 10 (citing Walker, 24 Fed. Appx. 57 at 59) ; see Defs.' Summ. J. Mot. at 8-10. The Court of Appeals for the Second Circuit has already rejected Walker's argument, finding it "to be without merit." Walker, 24 Fed. Appx. at 59; see id. at 58. In addition, "the Government had substantial evidence of Walker's guilt;" [**8] it is therefore "improbable" that "the result would have been different." Walker, 24 Fed. Appx. at 58 (citing United States v. Simmons, 923 F.2d 934, 956 (2d. Cir. 1991) ("Given the plethora of evidence against [Walker], there is little reason to believe that alternative counsel would have fared better.")).

B. Plaintiff's Due Process Claim

Plaintiff alleges that his due process rights were violated when he was transferred involuntarily to the general population of the G.R.V.C. facility after the February 1996 shooting incident. Second Am. Compl. PP 26-28; see Pl.'s Objections at 5-6. Judge Francis's Report notes correctly that "under the Prison Reform Act (the "PLRA"), 'no action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal Law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. " Report at 11 (emphasis and first alteration added) (quoting 42 U.S.C. § 1997e(a) (2002)); see Porter v. Nussle, 534 U.S. 516, 152 L. Ed. 2d 12, 122 S. Ct. 983 (2002); [**9] Booth v. Churner, 532 U.S. 731, 149 L. Ed. 2d 958, 121 S. Ct. 1819 (2001). Plaintiff has failed to exhaust his administrative remedies. Plaintiff's Objections address neither Judge Francis's conclusion nor the PLRA's exhaustion requirement; rather, Plaintiff reasserts generally that he was "released involuntarily ... without [a] due process hearing." Pl. Objections at 5-6 (citing Second Am. Compl. PP 26, 27); see Pl.'s Opp'n Summ. J. at 3, 4; see also Barratt, 2002 U.S. Dist. LEXIS 3453, 2002 WL 335014 at *1.

"Riker's Island, like all New York correctional facilities, provides administrative [*294] remedies through an inmate grievance program." Report at 11-12 (citing Directive # 3375R, entitled, "Inmate Grievance Resolution Program"). The record reflects that Walker did not file a grievance during his incarceration. Id. at 12 (citing Harris Aff. PP 3-6). Plaintiff's assertions to the contrary are "completely unsupported and therefore insufficient to preclude summary judgment." Id.; see Matsushita Elec. Indus., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); [**10] see also Bianco v. Shalala, 1994 U.S. Dist. LEXIS 11709, No. 93 Civ. 5931, 1994 WL 455519, at *1 (S.D.N.Y. Aug. 22, 1994).



IV. Order

The Court incorporates Magistrate Francis's Report [40] by reference, and, for the reasons therein and herein, grants Defendants' motion for summary judgment with respect to Plaintiff's failure to protect and due process claims. Counsel are directed forthwith to contact Court Deputy Christine Murray (at (212) 805-6715) to arrange a status/scheduling phone conference with the Court. The parties are directed to engage in good faith settlement negotiations prior to the conference.



Dated: New York, New York

August 15, 2002

RICHARD M. BERMAN, U.S.D.J.