DECISION and ORDER

GLENN T. SUDDABY, Chief District Judge.

Currently before the Court, in this pro se prisoner civil rights action filed by Rogelio Alcaide ("Plaintiff") against the four above-captioned employees of the New York State Department of Corrections and Community Supervision ("Defendants"), are the following: (1) United States Magistrate Judge Daniel J. Stewart's Report-Recommendation recommending that Defendants' motion for partial summary judgment be denied, (2) Defendants' Objections to the Report-Recommendation, (3) Plaintiff's response to Defendants' Objections, and (4) Plaintiff's motion to appoint counsel. (Dkt. Nos. 71, 72, 73, 75.) For the reasons set forth below, Defendants' motion for partial summary judgment is denied, and Plaintiff's motion to appoint counsel is granted.

I. RELEVANT BACKGROUND

A. Magistrate Judge Stewart's' Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Stewart rendered the following two findings of fact and conclusions of law: (1) a genuine dispute of material fact exists warranting the denial of Defendants' motion for partial summary judgment on Plaintiff's Fourth Amendment claim against Defendant Smith based on an unreasonable pat-frisk, because (a) admissible evidence exists that, immediately after complying with the direction to submit to a pat-frisk, Defendant Smith (without provocation) assaulted Plaintiff, including by punching him, and (b) the fact that Plaintiff pled guilty to the disciplinary charge of disobeying an order to comply with all frisk and search procedures does not render it uncontroverted that either no search took place or Defendant Smith acted reasonably in attempting to conduct a pat-frisk; and (2) a genuine dispute of material fact exists warranting the denial of Defendants' motion for partial summary judgment on Plaintiff's Eighth Amendment claim against Defendants Cosey and Cosh based on a failure to intervene in the excessive force being used, because (a) it is undisputed that Defendants Cosey and Cosh were present at approximately the time in question, and (b) construing the record evidence in Defendants' favor would involve making a credibility determination, which is the function of a jury, not the Court. (Dkt. No. 71, at Part III.)

B. Defendants' Objections to the Report-Recommendation

Generally, in their Objections, Defendants assert the following two arguments: (1) Magistrate Judge Stewart erred in finding the existence of a genuine dispute of material fact regarding Plaintiff's Fourth Amendment claim against Defendant Smith, because (a) Magistrate Judge Stewart relied on two pat-frisk cases that are distinguishable from the current case, in which no pat-frisk actually occurred, and (b) Plaintiff's evidence that Defendant Smith punched him gives rise to only an Eighth Amendment claim; and (2) Magistrate Judge Stewart erred in finding the existence of a genuine dispute of material fact regarding Plaintiff's Eighth Amendment claim against Defendants Cosey and Cosh, because Plaintiff's deposition testimony that he was "not sure" if Cosey and Cosh had yet arrived by the time his head was banged on the floor renders his evidence of their realistic opportunity to intervene and prevent the assault either speculative or conclusory, neither of which is sufficient to defeat a motion for summary judgment. (Dkt. No. 72.)

II. STANDARD OF REVIEW

When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 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." N.D.N.Y. L.R. 72.1(c).1 When performing such a de novo review, "[t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.2 Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) ("[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312-13 (W.D.N.Y. 2009) ("In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks omitted).

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) (collecting cases), aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.3 Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.4

After conducting the 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. ANALYSIS

A. Defendants' Motion for Partial Summary Judgment

After carefully reviewing the relevant papers herein, including Magistrate Judge Stewart's Report-Recommendation, the Court can find no error in those parts of the Report-Recommendation to which Defendants specifically objected, and no clear error in the remaining parts of the Report-Recommendation: Magistrate Judge Stewart employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. To those reasons, the Court will add only the following analysis.

With regard to Plaintiff's Fourth Amendment claim against Defendant Smith based on an unreasonable pat-frisk, Plaintiff has adduced admissible record evidence from which a rational fact-finder could conclude that (1) without provocation, Defendant Smith pushed Plaintiff while Plaintiff's hands were against the wall and then punched Plaintiff in the face, and (2) after that point, Smith abandoned an effort to pat-frisk Plaintiff in favor of jumping on Plaintiff and smashing Plaintiff's head against the floor and/or attempting to pull Plaintiff into a room to beat Plaintiff up. (Dkt. No. 1, at ¶¶ 11, 12, 33 [Plf.'s Verified Compl.];5 Dkt. No. 45, Attach. 2, at 22-24, 30-33 [attaching pages "19" through "21," and "27" through "31" of Plf.'s Depo. Tr.]; Dkt. No. 63, Attach. 3, at ¶¶ 6-9 [Plf.'s Decl.].) Defendants argue that no pat-frisk ended up occurring, rendering the sole claim arising from the events in question as one for excessive force under the Eighth Amendment (which claim separately remains pending). (Dkt. No. 72, at 4 [Defs.' Obj.].) However, Defendants do not deny that Defendant Smith ordered Plaintiff to exit the line from the mess hall and place both hands against the wall as part of the initiation of a patfrisk. (Dkt. No. 61, at 18 [Plf.'s Misbehavior Report]; Dkt. No. 61, at 25 [Report from Hoy to Miller dated Nov. 11, 2014]; Dkt. No. 61, at 26 [Report from Def. Smith to Miller dated Nov. 22, 2014]; Dkt. No. 61, at 27 [Report from Def. Pereira to Miller dated Nov. 22, 2014].) Under the circumstances, a rational fact-finder could conclude that (1) the purported push was part of the start of the pat-frisk, (2) Defendant Smith's act of punching Plaintiff was an attempt to subdue Plaintiff in order to effect the pat-frisk, and (3) both the purported push and punch of Plaintiff were unprovoked and thus unreasonable. As a result, the events (albeit barely) give rise to a viable Fourth Amendment claim against Defendant Smith.

The viability of this claim is in no way diminished by the fact that Plaintiff obviously misses the mark by arguing that Defendant Smith lacked probable cause to initiate a pat-frisk. (See, e.g., Dkt. No. 75, at 7 [Plf.'s Response to Defs.' Obj.].) Probable cause is not required to perform a pat-frisk; rather, only something akin to reasonable suspicion is required.6 Moreover, no genuine dispute of material fact exists (on the current record) that Defendant Smith possessed reasonable suspicion to initiate a pat-frisk. The record contains admissible evidence that Defendant Smith perceived Plaintiff to be "acting suspiciously" while in the line returning from the mess hall. (See, e.g., Dkt. No. 1, at ¶ 11 [Plf.'s Verified Compl.]; Dkt. No. 61, at 18 [Plf.'s Misbehavior Report]; Dkt. No. 45, Attach. 2, at 174-75 [attaching pages "1" and "2" of Plf.'s Disciplinary Hearing Tr.]; Dkt. No. 63, Attach. 3, at ¶ 5 [Plf.'s Decl.].)7 For the sake of brevity, the Court will not linger on the fact that the current record appears to contain no admissible evidence that Plaintiff did not, in fact, act suspiciously while in line returning from the mess hall. (See generally Dkt. No. 1, at ¶ 11 [Plf.'s Verified Compl.]; Dkt. No. 45, Attach. 2 [Plf.'s Depo. Tr.]; Dkt. No. 63, Attach. 3 [Plf.'s Decl.].) More importantly, Plaintiff pled guilty to refusing a direct order to comply with the pat-frisk, conceding that the order was valid. (Dkt. No. 45, Attach. 2, at 174-79 [attaching disciplinary hearing transcript and disposition]; Dkt. No. 45, Attach. 2, at 117 [attaching page "114" of Plf.'s Depo. Tr.].) Regardless of whether the pat-frisk was justified, however, Plaintiff retains the Fourth Amendment right against having the pat-frisk conducted in an unreasonable manner.

With regard to Plaintiff's Eighth Amendment claim against Defendants Cosey and Cosh based on their failure to intervene in the excessive force being used against Plaintiff, Defendants' argument that Plaintiff acknowledged that he was "not sure" if Cosey and Cosh had yet arrived when Defendant Smith banged his head against the floor ignores the uncontrovered evidence that, at some point during Smith's use of force against Plaintiff, Cosey and Cosh had in fact arrived on the scene. Indeed, both Defendants Cosey and Cosh put their arrival at the scene at most a moment after Plaintiff's head was purportedly smashed against the floor. (Dkt. No. 45, Attach. 4, at ¶ 7 [Cosey Decl., stating that "I went to the rotunda and saw Plaintiff lying prone on the floor. When I arrived, . . . Plaintiff continued to thrash his legs around in a violent manner . . ."]; Dkt. No. 45, Attach. 5, at ¶ 7 [Cosh Decl., stating that "I went to the rotunda and saw Plaintiff lying prone on the floor. Plaintiff continued to violently struggle with C.O. John Smith and C.O. Charles Pereira while they maintained control of his upper body."].) Courts have sometimes permitted a plaintiff's failure-to-intervene claim to proceed against an officer even though the plaintiff was unable to see with certainty whether the officer was actually present during the use of excessive force, especially if the officer was at least nearby and the use of excessive force was likely to have prevented the plaintiff from seeing that officer.8 Here, because it appears undisputed that Defendants Cosey and Cosh were at least nearby at the time that Defendant Smith purportedly smashed Plaintiff's head against the floor (and because Plaintiff was not in a position to turn around and observe Cosey and Cosh at the time Plaintiff's head was smashed against the floor), the Court finds that the events (again, albeit barely) give rise to a viable Eighth Amendment claim against Defendants Cosey and Cosh.

The Court notes that, after Plaintiff's October 2018 deposition (at which he testified that his head was "smashed" against the floor once), Plaintiff adduced an April 2019 declaration appearing to testify that his head was "smashed" against the floor twice, the second time after Defendant Cosh had placed Plaintiff's wrists in restraints (during which time Defendant Cosey was present). (Compare Dkt. No. 45, Attach. 2, at 43-44, 49-51, 61, 67, 69 [attaching pages "40," "41," "46," "47," "48," "58," "64" and "66" of Plf.'s Depo. Tr.] with Dkt. No. 63, Attach. 3, at ¶¶ 9-12 [Plf.'s Decl.].) If the declaration had been dated before Plaintiff's deposition, the testimony therein might be problematic for Defendants, given that Defendants Cosh admits that he placed Plaintiff's wrists in restraints. (Dkt. No. 45, Attach. 5, at ¶¶ 7, 9 [Cosh Decl.].) However, the Court does not base this portion of its Decision and Order on that portion of Plaintiff's post-deposition declaration.9

The Court notes also that, after Plaintiff's deposition (at which he appears to have also testified that Defendants Cosey and Cosh did not arrive until after he had been "hog tied"), Plaintiff adduced a declaration appearing to testify that Cosey and Cosh arrived before he had been "hog tied." (Compare Dkt. No. 45, Attach. 2, at 66-67, 70, 71 [attaching pages "63," "64," "67" and "68" of Plf.'s Depo. Tr.] with Dkt. No. 63, Attach. 3, at ¶¶ 10-13 [Plf.'s Decl.].) Because consideration of this portion of Plaintiff's late-blossoming contradictory declaration would be improper on Defendants' motion for partial summary judgment, the Court finds that the declaration does not suffice to trigger the Court's gate-keeping function under Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) ("[I]n the rare circumstances where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether . . . there are any `genuine' issues of material fact, without making some assessment of the plaintiff's account.").

B. Plaintiff's Motion to Appoint Counsel

After carefully considering the matter, the Court grants Plaintiff's motion to appoint counsel as supported by a showing of cause. (Dkt. No. 73.) Because various of Plaintiff's claims have survived dispositive-motion practice, the Court will appoint pro bono trial counsel for Plaintiff.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Stewart's Report-Recommendation (Dkt. No. 71) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendants' motion for partial summary judgment (Dkt. No. 45) is DENIED; and it is further

ORDERED that Plaintiff's motion to appoint counsel (Dkt. No. 73) is GRANTED.