DeVinney v. Jenkins

• Court: District Court, N.D. New York
• Decided: May 23, 2025
• Docket: 9:24-cv-00572
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

PHILIP W. DEVINNEY,

Plaintiff,

-against- 9:24-cv-572 (AMN/DJS)

DALTON RUSSELL,

Defendant.

APPEARANCES: OF COUNSEL:

PHILIP W. DEVINNEY 1004662 Delaware County Correctional Facility 280 Phoebe Lane Suite 6 Delhi, NY 13753 Plaintiff, pro se

THE LONG LAW FIRM, PLLC JAMES A. LONG, ESQ. 120 E. Washington Street – Suite 928 Syracuse, NY 13202 Attorney for Defendant

Hon. Anne M. Nardacci, United States District Judge:

ORDER I. INTRODUCTION On April 29, 2024, plaintiff pro se Philip W. DeVinney (“Plaintiff”), an incarcerated individual, commenced this action pursuant to 42 U.S.C. § 1983 based on allegations that his constitutional rights were violated at the Tioga County Jail. See Dkt. No. 1. Plaintiff sought and was granted leave to proceed in forma pauperis. See Dkt. Nos. 5, 7. On August 15, 2024, Plaintiff filed an amended complaint (“Amended Complaint”). See Dkt. No. 11. In accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), this Court reviewed the sufficiency of the claims therein and permitted one claim to proceed: Plaintiff’s Fourteenth Amendment failure-to- protect claim against Defendant. See Dkt. No. 12. On December 13, 2024, Defendant filed a motion for summary judgment seeking dismissal of the Amended Complaint. See Dkt. No. 18 (the “Motion”). The parties have fully briefed the Motion. See Dkt. Nos. 30, 31. This matter was referred to United States Magistrate Judge Daniel

J. Stewart, who, on March 31, 2025, issued a Report-Recommendation and Order (“Report- Recommendation”), recommending that the Motion be granted. See Dkt. No. 33. Magistrate Judge Stewart advised that under 28 U.S.C. § 636(b)(1), the parties had fourteen days within which to file written objections and that failure to object to the Report-Recommendation within fourteen days would preclude appellate review. Id. at 9.1 Neither party filed timely objections. For the reasons stated herein, the Court adopts the recommendations in the Report- Recommendation in its entirety. II. STANDARD OF REVIEW A district court reviews de novo those portions of a magistrate judge’s report-

recommendations that have been properly preserved with a specific objection. 28 U.S.C. § 636(b)(1)(C). “To be ‘specific,’ the objection must, with particularity, ‘identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.’” Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012) (alteration in original) (quoting N.D.N.Y. Local Rule 72.1(c)). When a party files “[g]eneral or conclusory objections, or objections which merely recite the same arguments [previously] presented to the magistrate judge,” the district court reviews a magistrate judge’s report-recommendations for clear

1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic filing system. error. O’Diah v. Mawhir, No. 9:08-CV-322 (TJM)(DRH), 2011 WL 933846, at *1 (N.D.N.Y. Mar. 16, 2011) (citations omitted); accord Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (a “statement, devoid of any reference to specific findings or recommendations to which [the plaintiff] objected and why, and unsupported by legal authority, was not sufficient to preserve” a claim).

“[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations omitted). The Second Circuit has held that courts are obligated to “‘make reasonable allowances to protect pro se litigants’” from inadvertently forfeiting legal rights merely because they lack a legal education. Govan, 289 F. Supp. 2d at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even 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 Civ. 13320 (DAB)(JCF), 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011)

(citation omitted); accord Caldwell v. Petros, No. 1:22-cv-567 (BKS/CFH), 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 636(b)(1)(C). III. DISCUSSION Because neither party has filed any objections to the Report-Recommendation, the Court reviews the Report-Recommendation for clear error. Magistrate Judge Stewart recommended that the Court grant the Motion because Plaintiff did not exhaust his administrative remedies, as required by the Prison Litigation Reform Act. See Dkt. No. 33 at 5-9 (citing 42 U.S.C. § 1997e(a)). Having reviewed the Report-Recommendation for clear error, and found none, the Court adopts the Report-Recommendation in its entirety. IV. CONCLUSION Accordingly, the Court hereby ORDERS that the recommendations in the Report-Recommendation, Dkt. No. 33, are ADOPTED for the reasons stated herein; and the Court further ORDERS that Defendants’ motion for summary judgment, Dkt. No. 18, is GRANTED; and the Court further ORDERS that the Clerk shall enter judgment in Defendant’s favor and close this case; and the Court further ORDERS that the Clerk serve a copy of this Order on all parties in accordance with the Local Rules.” IT IS SO ORDERED.

DATED: May 23, 2025 Ounce) . Rarer Albany, New York Anne M. Nardacci U.S. District Judge

? The Clerk shall also provide Plaintiff with copies of all unreported decisions herein.