ORDER
MAE A. D'AGOSTINO, District Judge.
Pro se Plaintiff Jason Brisman ("Plaintiff"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this civil rights action pursuant to 42 U.S.C. § 1983 asserting claims arising out of his confinement at Auburn Correctional Facility ("Auburn C.F."). See Dkt. No. 1. On initial review pursuant to 28 U.S.C. § 1915A, numerous claims and Defendants were dismissed. See Dkt. No. 9. However, Plaintiff's Eighth Amendment excessive force and First Amendment retaliation claims against Defendants Volpe, Travis, Reilly, Shells, Kirkwood, and Lupo were found sufficient to survive initial review and required a response. See id.
Thereafter, Plaintiff's Eighth Amendment claim was dismissed with leave to amend. See Dkt. No. 42. By letter dated November 17, 2016, Plaintiff advised the Court that he had elected not to file an amended complaint. See Dkt. No. 48. As such, only Plaintiff's First Amendment retaliation claims remain.
On July 11, 2017, Defendants Kirkwood and Reilly moved for summary judgment. See Dkt. No. 54. Defendants Kirkwood and Reilly claim that summary judgment is warranted because Plaintiff admitted during his deposition that he did not know if either Kirkwood or Reilly "tackled [him] into the wall" on June 6, 2014. See Dkt. No. 54-5 at 4-9.
In a February 9, 2018 Order and Report-Recommendation, Magistrate Judge Dancks recommended that the Court deny Defendant Kirkwood and Reilly's motion for summary judgment. See Dkt. No. 63. Magistrate Judge Dancks acknowledged that Plaintiff did testify at his deposition that he was not positive that it was Defendants Kirkwood and Reilly who tackled him into the wall. See id. at 9. The report further notes, however, Plaintiff testified that he knew that Defendant Kirkwood was behind him with Defendant Reilly when he was tackled into the wall. See id. As such, Magistrate Judge Dancks found that their presence behind Plaintiff, immediately before and following the attack, presents a question of fact as to their personal involvement that cannot be resolved at summary judgment. See id. at 9-10 (citing Cusamano v. Sobek, 604 F.Supp.2d 416, 428 (N.D.N.Y. 2009)). Neither party objected to Magistrate Judge Dancks' Order and Report-Recommendation.
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").
"[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, 92 S.Ct. 594, 30 L. Ed. 2d 652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). This does not mean, however, that a pro se litigant is excused from following the procedural requirements of summary judgment. See id. (citing Showers v. Eastmond, No. 00 CIV. 3725, 2001 WL 527484, *1 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's `bald assertion,' completely unsupported by evidence is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
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). However, when a party 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 by the magistrate judge." 28 U.S.C. § 636(b)(1). A litigant's failure to file objections to a magistrate judge's report and 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).
Having reviewed the Order and Report-Recommendation and the parties' submissions, the Court finds that Magistrate Judge Dancks correctly determined that the Court should deny Defendant Kirkwood and Reilly's motion for summary judgment. Plaintiff testified that, although not positive that it was Defendants Kirkwood and Reilly that had tackled him into the wall, he believed that they had done it. This, including their presence behind Plaintiff both before and after the alleged attack, is sufficient to create a question of fact, thereby precluding summary judgment. See Cusamano, 604 F. Supp. 2d at 428.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' Order and Report-Recommendation is ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Defendants' motion for summary judgment (Dkt. No. 54) is DENIED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
