The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KAMAR JOHNSON,
Plaintiff,
v. 9:22-cv-747 (AMN/DJS)
C.O. N. PHILLIPS, et al.,
Defendants.
APPEARANCES: OF COUNSEL:
KAMAR JOHNSON
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
Plaintiff, pro se
HON. LETITIA JAMES NICHOLAS W. DORANDO, ESQ.
Attorney General of the State of New York Assistant Attorney General
The Capitol
Albany, New York 12224
Attorney for Defendants
Hon. Anne M. Nardacci, United States District Judge:
ORDER
I. INTRODUCTION
On July 15, 2022, Plaintiff pro se Kamar Johnson (“Plaintiff”) commenced this action
pursuant to 42 U.S.C. § 1983 (“Section 1983”), asserting claims arising out of his confinement in
the custody of the New York State Department of Corrections and Community Supervision
(“DOCCS”) at Clinton Correctional Facility (“Clinton C.F.”) against Correction Officers
(“C.O.s”) Noah Phillips (“C.O. Phillips”) and Matthew Goff (“C.O. Goff,” and collectively
“Named Defendants”), and Sergeant John Doe (“Sgt. Doe”), C.O.s John Doe 1, and John Doe 2
(collectively the “Doe Defendants”). Dkt. No. 11 (the “Complaint”).2 Specifically, Plaintiff
alleges that on March 4, 2022, during a pat frisk, C.O. Phillips sexually molested him, and when
he protested, C.O. Phillips, C.O. Goff, John Doe 1, and John Doe 2 used excessive force against
him, and Sgt. Doe was present and failed to intervene. Id. at 4-5.3 Plaintiff sought leave to proceed
in forma pauperis (“IFP”), which was granted. Dkt. Nos. 2, 6.4
On July 28, 2023, Defendants moved for summary judgment seeking dismissal of the
Complaint in its entirety pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed. R.
Civ. P.”). Dkt. No. 21 (the “Motion”).5 Plaintiff opposed the Motion. Dkt. No. 27 (“Opposition”).
On December 8, 2023, United States Magistrate Judge Daniel J. Stewart issued a Report-
Recommendation and Order recommending that the Court grant Defendants’ Motion as to
Plaintiff’s claims against C.O. Goff and the Doe Defendants and deny Defendants’ Motion as to
the claims against C.O. Phillips. Dkt. No. 29 (the “Report-Recommendation”). 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 that time
1 Citations to court documents utilize the pagination generated by CM/ECF docketing system and
not the documents’ internal pagination.
2 For a complete recitation of the facts in Plaintiff’s Complaint, the parties are referred to the
Report-Recommendation. See Dkt. No. 29 at 2-3.
3 Plaintiff’s Complaint asserted the following Eighth Amendment claims: (1) sexual assault against
C.O. Phillips; (2) excessive force against the Named Defendants, John Doe 1, and John Doe 2; and
(3) failure to intervene against C.O. Goff and the Doe Defendants. Dkt. No. 1 at 5.
4 After an initial review of the Complaint, the Court found that Plaintiff’s claims survived and
required a response. Dkt. No. 6 at 8. The Court also ordered that “[P]laintiff shall take reasonable
steps through discovery to ascertain the identity of [D]efendants Sgt. Doe and John Does 1 and 2.”
Id. at 11.
5 Defendants moved for summary judgment on three grounds: “(1) qualified immunity bars suit
against [C.O.] Phillips; (2) [C.O.] Goff was not personally involved in the alleged use of force;
and (3) the action against [the Doe Defendants] should be dismissed for failure to effect service.”
Dkt. No. 29 at 4 (citing Dkt. No. 21-6 at 7-12).
would preclude appellate review. Id. at 12. Neither party has filed objections to the Report-
Recommendation and the time for filing objections has expired.
For the reasons set forth below, the Court adopts the Report-Recommendation in its
entirety.
II. STANDARD OF REVIEW
A district court reviews de novo those portions of a magistrate judge’s report-
recommendation that have been properly preserved with a specific objection. Petersen v. Astrue,
2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). If no specific objections
have been filed, the court reviews a report-recommendation for clear error. See Petersen,
2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition).
“[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. 2003) (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)). 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
As no party has filed objections to the Report-Recommendation, this Court reviews the
Report-Recommendation for clear error.
Magistrate Judge Stewart first concluded that there are issues of material fact which
preclude summary judgment on Plaintiff’s Eighth Amendment excessive force and sexual assault
claims against C.O. Phillips. Dkt. No. 29 at 5-8. As to Plaintiff’s excessive force claim, Magistrate
Judge Stewart found that while video of the incident6 “clearly shows that a use of force occurred,”
issues of fact remain as to whether the force was used “to gain control” of Plaintiff because he was
“resisting apprehension” or whether “the force exerted was excessive.” Id. at 5-6 (citing Dkt. No.
21-2 at 01:36-01:40; Dkt. No. 21-3 at ¶ 13; Dkt. No. 21-5 at 44-45). As to Plaintiff’s sexual assault
claim, Magistrate Judge Stewart found that because the video “only shows that [C.O.] Phillips
made contact with Plaintiff’s lower body during the pat frisk,” and because of the “unclear record
and disputed version of events,” an issue of fact remains as to whether C.O. Phillips “engaged in
conduct beyond what was required for a pat search in order to gratify [his] sexual desire or
humiliate Plaintiff.” Id. at 7-8 (quoting Hayes v. Dahlke, 976 F.3d 259, 275 (2d Cir. 2020))
(internal quotation marks and citation omitted) (citing Dkt. No. 21-2 at 00:51-01:36; Dkt. No. 21-
3 at ¶ 12; Dkt. No. 21-5 at 44; Dkt. No. 27 at 3).
Magistrate Judge Stewart further concluded that because issues of fact remain as to
Plaintiff’s Eighth Amendment claims against C.O. Phillips, “the Court cannot determine on this
Motion whether qualified immunity insulates [C.O.] Phillips from liability.” Id. at 8 (citing Jones
v. Parmley, 465 F.3d 46, 62-63 (2d Cir. 2006)). As a result, Magistrate Judge Stewart
recommended that the Motion be denied as to Plaintiff’s claims against C.O. Phillips.
Next, Magistrate Judge Stewart concluded that Plaintiff did not plead facts alleging that
C.O. Goff was “personally involved” in violating Plaintiff’s constitutional rights. Id. at 8 (citing,
inter alia, Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016)). Magistrate Judge Stewart noted,
after reviewing the video, that both C.O. Goff and C.O. Phillips assert that C.O. Goff was “not
6 Defendants submitted security camera footage from the Clinton C.F. Horseshoe, dated March 4,
2022, as Exhibit “B” to the Declaration of Lieutenant Bruce Shutts. See Dkt. No. 21-2.
present during Plaintiff’s pat frisk or the use of force,” see Dkt. No. 21-3 at ¶ 21; Dkt. No. 21-4 at
¶ 5, and C.O. Goff’s interaction with Plaintiff “was limited to a frisk of the Plaintiff, conducted
following [the] documented use of force,” see Dkt. No. 21-4 at ¶ 6. Dkt. No. 29 at 9. Magistrate
Judge Stewart also noted that Plaintiff made only “conclusory allegations” during his deposition
testimony that C.O. Goff was present during the excessive force incident, which were insufficient
to establish his personal involvement. Id. (citing Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.
2003)); see also Dkt. No. 21-5 at 63-64 (Plaintiff testified that he did “not know” and was not
“[one] hundred percent sure” if C.O. Goff was present during the excessive force incident). As a
result, Magistrate Judge Stewart recommended that Plaintiff’s claims against C.O. Goff be
dismissed. Dkt. No. 29 at 8-9.7
Finally, Magistrate Judge Stewart noted that Plaintiff failed to serve the Doe Defendants
within 90 days after the Complaint was filed, see Fed. R. Civ. P. 4(m), request an extension of the
service deadline, or “put forth an excuse for his failure to serve the Doe Defendants.” Id. at 10-11
(citing Zapata v. City of New York, 502 F.3d 192, 199 (2d Cir. 2007); Tolchin v. Cnty. of Nassau,
768 F. App’x 60, 61-62 (2d Cir. 2019)). Magistrate Judge Stewart concluded that because
discovery closed on April 14, 2023, “Plaintiff has no further opportunity to obtain discovery aiding
in identification of the Doe Defendants.” Id.8 As a result, Magistrate Judge Stewart recommended
dismissing Plaintiff’s Complaint as to the Doe Defendants. Id. at 11.
7 Magistrate Judge Stewart did not consider Plaintiff’s allegation that C.O. Goff was present when
he was assaulted a second time off camera, see Dkt. No. 27 at 5, because Plaintiff raised this claim
“for the first time” in his Opposition. Dkt. No. 29 at 9-10 n. 3 (citing Pope v. Cnty. of Albany, No.
1:11-cv-0736 (LEK/CFH), 2014 WL 316703, at *10 (N.D.N.Y. Jan. 28, 2014)).
8 The Court also notes that on January 12, 2023, Defendants provided their initial disclosures to
Plaintiff, pursuant to Fed. R. Civ. P. 26(a)(1), Dkt. No. 21-5 at 4-8, and in his Opposition, Plaintiff
admitted that he had “a paper in [his] discover[y] that let [him] know all of the C.O.s who’d hit
[him].” Dkt. No. 27 at 7.
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 Report-Recommendation, Dkt. No. 29, is ADOPTED in its entirety; and
the Court further
ORDERS that Defendants’ Motion, Dkt. No. 21, is GRANTED in part and DENIED in
part. Defendants’ Motion is GRANTED as to Plaintiff's claims against Defendant C.O. Goff and
the Doe Defendants, which claims and Defendants are DISMISSED. Defendants’ Motion is
DENIED as to Plaintiffs Eighth Amendment claims for sexual assault and excessive force against
Defendant C.O. Phillips; and the Court further
ORDERS that the Clerk serve a copy of this Order on the parties in accordance with the Local
Rules.
IT IS SO ORDERED.
DATED: February 8, 2024 Oeuedy Nardacer
Albany, NY Anne M. Nardacci
U.S. District Judge