LAWRENCE E. KAHN, District Judge.
This matter comes before the Court following a Report-Recommendation filed on October 29, 2018, by the Honorable Daniel J. Stewart, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 36 ("Report-Recommendation").
Within fourteen days after a party has been served with a copy of a magistrate judge's report-recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b); L.R. 72.1(c). If objections are timely filed, a court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." § 636(b). However, if no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F.Supp.2d 301, 306-07, 306 n.2 (N.D.N.Y. 2008), abrogated on other grounds by Widomski v. State Univ. of N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014); see also Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) ("[E]ven 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, such that no party be allowed a second bite at the apple by simply relitigating a prior argument."). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." § 636(b).
Plaintiff alleges that he was confined in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") after his sentence expired on January 19, 2017. Dkt. No. 1 ("Complaint") at 4. On that day, he was brought to the booking area at Otsego County Jail, where he had been serving his sentence, and was told by defendant Adam Tilbe, a lieutenant and Otsego's Jail Administrator, that he was to be transferred to Elmira Correctional Facility.
In this § 1983 action, Plaintiff has brought Eighth and Fourteenth Amendment claims against Kirkpatrick and Tilbe for this wrongful incarceration. Kirkpatrick and Tilbe have each filed motions to dismiss. Dkt. No. 16 ("Kirkpatrick Motion to Dismiss"), 23 ("Tilbe Motion to Dismiss").
The Magistrate Judge recommends dismissing the Eighth Amendment claim on qualified immunity grounds, Rep. at 5-8, but permitting the Fourteenth Amendment claim to proceed, on the basis that Plaintiff had a clearly established liberty interest in being released upon the expiration of his maximum term of sentence, and was deprived of that interest without due process of law,
Tilbe has timely filed objections to the Report-Recommendation, specific to the surviving Fourteenth Amendment Due Process claim against him. Dkt. Nos. 37 ("Objection"), 42 ("Supplemental Objection"), 42-1 ("Exhibit").
Tilbe raises two objections: (1) Plaintiff's Parole Revocation Certification makes clear that Plaintiff's maximum expiration date was not January 19, but instead January 21, 2017, after his release from Otsego and after Tilbe's alleged involvement concluded, Supp. Obj. at 1-2, Ex. at 2-3; and (2) even accepting that Plaintiff's sentence expired on January 19, 2017, Plaintiff alleges that he was released by Tilbe from Otsego on that date, and so Tilbe cannot have violated the Due Process Clause, Obj. at 1-2.
Tilbe notes that in Plaintiff's memorandum in opposition to to the Tilbe Motion to Dismiss, Plaintiff alleged that "Plaintiff was held in the Otsego County Jail on nothing more than a parole warrant." Supp. Obj. at 2; Dkt. No. 29 ("Opposition") at 1. Tilbe asks the Court to consider the Parole Revocation Certification in deciding the motion to dismiss. Supp. Obj. at 2. In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a court may consider the following matters outside the four corners of the complaint:
In support of his amendment incorporation arguments, Tilbe quotes
Here, even if the Certification had actually been attached to the Opposition (instead of merely referenced as a "parole warrant," Opp. at 1), the January 21 maximum expiration date in the Certification is not consistent with the Complaint's allegation of a January 19 maximum expiration date. Accordingly, Plaintiff did not amend the Complaint to incorporate the Certification by reference, and the Court cannot take notice of the Certification on that basis.
As to whether the Certification is "integral" to the Complaint, a "necessary prerequisite for that exception is that the `plaintiff[ ] rel[y] on the terms and effect of [the] document in drafting the complaint . . .; mere notice or possession is not enough.'"
However, even where extrinsic materials are considered integral to the complaint, "[i]f there is a dispute as to the relevance, authenticity or accuracy of the documents relied upon, the district court may not dismiss the complaint with those materials in mind."
Here, Plaintiff disputes the accuracy of the Certification, arguing that "Plaintiff's maximum expiration date was on January 19, 2017[,] [n]ot on January 21, 2017." Opp. at 1-2. Plaintiff states that other DOCCS records substantiate a January 19, 2017 expiration date.
Tilbe argues that, even accepting a maximum expiration date of January 19, 2017, it is undisputed that Tilbe released Plaintiff from Otsego Correctional Facility (albeit to DOCCS) on that maximum expiration date, and so Tilbe cannot be held to have violated the Due Process Clause. Obj. at 1-2. However, on January 19, 2017, Tilbe did not release Plaintiff from incarceration; rather, he released Plaintiff to the custody of DOCCS to be transferred to Elmira Correctional Facility. Compl. at 4-5.
Personal involvement of a supervisory official may be shown by evidence that
Even assuming that Tilbe did not participate directly in the Due Process violation, a liberal construction of the Complaint indicates that Tilbe was personally involved by way of his deliberate indifference. Plaintiff told Tilbe his sentence expired on January 19. Tilbe knew, it can be inferred, that transferring Plaintiff would cause him to be incarcerated for at least some period beyond his expiration date. In addition, it is plausible that Tilbe, as a jail administrator, was in a position to act to stop the transfer, but refused to do so.
As to all other portions of the Report-Recommendation, to which there have been no objections, the Court has reviewed the Report-Recommendation for clear error and found none.
Accordingly, it is hereby: