dismissing plaintiff's excessive force claims that included allegations of numbness and bruising to his wrists from tight handcuffsSummary of this case from Abdul-Rahman v. City of New York
96 Civ. 0324 (LTS)(THK)
March 4, 2002
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
On March 29, 2001, Magistrate Judge Theodore H. Katz issued a Report and Recommendation ("Report") recommending that Plaintiff's action pursuant to 42 U.S.C. § 1983 against Defendants Police Officers William Joie and Thomas Fitzgerald ("Defendants") be dismissed with prejudice and that Defendants be granted summary judgment. On April 9, 2001, Plaintiff filed a timely objection to the Report and Recommendation.
In reviewing the Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636 (b)(1)(C) (2001). The statute provides that "[w]ithin ten days . . . any party may serve and file written objections to such proposed findings and recommendations . . . ." Id. "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record."Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (Court may accept report if it is "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). 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. See Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusory or general and constitute a rehashing of the same arguments and positions taken in original pleadings); Chabrier v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838 at *1 (S.D.N.Y. March 26, 1991) (restatement of allegations before the Court and assertion that valid constitutional claim exists insufficient exists insufficient to form specific objections); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691 (JL), 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994) (objections stating the magistrate judge's decisions are wrong and unjust, and restating relief sought and and facts upon which complaint grounded, are conclusory and do not form specific basis for not adopting report and recommendation). Objections to a Report and Recommendation "are to be specific and are to address only those portions of the proposed findings to which the party objects." Camardo, 806 F. Supp. at 381-82 Parties filing objections to recommendations air required to ""pinpoint' specific portions of the report and recommendations to which [they] objec[t] . . . ."Id. at 382.
Plaintiff's responses to Magistrate Judge Katz's Report reiterate many of the claims asserted in his earlier submissions, including Plaintiff's Amended Complaint, dated January 27, 1997, Plaintiff's Memorandum of Law in Support to Deny Defendant's Motion, dated July 6, 2000, and Plaintiff's Affidavit in Opposition to Defendant's Motion, dated July 6, 2000. Those claims are addressed directly in the Report. Plaintiff's allegations and unsubstantiated assertions do not provide any basis for deviation from Magistrate Judge Katz's conclusions.
The only specific objection raised by Plaintiff to the content of the Report is an assertion that there is a material disputed issue of fact, precluding summary judgment, as to whether Plaintiff was injured. Magistrate Judge Katz's recommendation that the complaint should be dismissed in its entirety rests in part on the conclusion that Plaintiff did not complain of any injuries in the days following the alleged incident. Judge Katz cites among other things, a prison clinic intake form, dated June 12, 2000 (two days after the arrest), marked as a deposition exhibit and submitted by Defendants in support of their motion, that shows a negative response to the item "Have you been injured recently or have an injury now?" (Ex. C to Declaration by Elizabeth A. Galani.) Plaintiff proffers, as an attachment to his objections, another copy of the form, showing a check mark indicating an affirmative response to the item "Have you been injured recently or have an injury now?" Plaintiff asserts that the copy submitted by Defendants was altered and that he has come forward with evidence of an injury resulting from the alleged excessive use of force. This supposed evidence is insufficient to demonstrate the existence of a genuine issue of fact. Far from supporting Plaintiff's unsworn assertions that Defendants altered the copy marked as a deposition exhibit and that his copy is genuine, Plaintiff's proffer shows clear signs of alteration. A check mark in the negative column is incompletely obscured and, unlike the other affirmative responses, no narrative detail explaining the response appears in the adjoining column on Plaintiff's submission.
The Court, having thoroughly reviewed the entire Report, adopts Magistrate Judge Katz's Report and Recommendation and finds that the grant of summary judgment in favor of Defendants is proper. Plaintiffs complaint is dismissed with prejudice.