Oteri v. Schoharie County Correctional Facility

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

BRETT OTERI,

Plaintiff,

-against- 9:23-cv-0986 (AMN/ML)

LEANDRA PALMATIER, Correctional

Officer,

Defendant.

APPEARANCES: OF COUNSEL:

BRETT OTERI

Fishkill Correctional Facility

P.O. Box 1245

Beacon, NY 12508

Plaintiff, pro se

JOHNSON & LAWS, LLC GREGG JOHNSON, ESQ.

646 Plank Road, Suite 205 OLIVIA REINHARDT, ESQ.

Clifton Park, New York 12065

Attorney for Defendant

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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On August 14, 2023, plaintiff pro se Brett Oteri (“Plaintiff”) commenced this action

pursuant to 42 U.S.C. § 1983. See Dkt. No. 1.1 Plaintiff sought and was granted leave to proceed

in forma pauperis. Dkt. Nos. 2, 10. On September 13, 2023, pursuant to 28 U.S.C. § 1915, this

Court directed Defendant to respond to Plaintiff’s excessive force claim and dismissed all other

1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic

filing system.

claims. Dkt. No. 10. Plaintiff then filed an amended complaint on October 3, 2023, see Dkt. No.

13, and on October 19, 2023, filed a second amended complaint (“Second Amended Complaint”),

see Dkt. No. 15. Again, pursuant to 28 U.S.C. § 1915, this Court ordered that Plaintiff’s excessive

force claim survived review and dismissed all other claims. See Dtk. No. 20.

Thereafter, Defendant filed a motion to compel on July 26, 2024. See Dkt. No. 24. Plaintiff

failed to file a response, so the Court granted the unopposed motion to compel and warned Plaintiff

that failure to comply with court orders or to engage in the discovery process may result in

sanctions being imposed, including dismissal. See Dkt. No. 33. On September 20, 2024,

Defendant filed a status report stating that defense counsel could not locate Plaintiff and that

Plaintiff had not complied with the Court’s prior order compelling discovery. See Dkt. No. 35.

On September 23, 2024, the Court directed Plaintiff to, on or before October 4, 2024, provide the

Court and Defendant with an updated address and comply with its prior directives. See Dkt. No.

36. Again, the Court also cautioned Plaintiff that failure to comply may result in dismissal. Id.

On November 12, 2024, Defendant filed the pending motion to dismiss for lack of

prosecution. See Dkt. No. 38 (the “Motion to Dismiss”). Plaintiff’s response was due on

December 3, 2024. Id. Plaintiff instead next filed a notice of change of address on December 11,

2024. See Dkt. No. 39. On December 20, 2024, the Court, sua sponte, granted Plaintiff an

extension until January 21, 2025 to file an opposition. See Dkt. No. 40.

On December 31, 2024, Defendant filed the pending motion for summary judgment. See

Dkt. No. 41 (the “Summary Judgment Motion”). The deadline to respond was January 21, 2025.

See Dkt. No 43.

On January 29, 2025, Plaintiff filed a response which was docketed as an opposition to the

motion for summary judgment, but in substance, opposed the motion to dismiss based on a failure

to prosecute. See Dkt. No. 47. The response made no substantive argument opposing the bases

for summary judgment presented in Defendant’s papers. See id. Defendant filed a reply on

January 31, 2025. See Dkt. No. 48.

On February 5, 2025, the Court sua sponte granted Plaintiff until February 19, 2025 to file

any additional response to the pending motions. See Dkt. No. 51. No additional response was

filed.

This matter was referred to United States Magistrate Judge Miroslav Lovric, who, on May

29, 2025, issued a Report-Recommendation and Order (“Report-Recommendation”),

recommending that the Motion to Dismiss be denied, and that the Summary Judgment Motion be

granted. See Dkt. No. 55. Magistrate Judge Lovric 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 23. Neither

party has filed objections.

For the reasons stated herein, the Court adopts the recommendations in the Report-

Recommendation.

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

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.

A. Motion to Dismiss for Failure to Prosecute

Magistrate Judge Lovric recommended that the Court deny Defendant’s motion to dismiss

for failure to prosecute. The Report-Recommendation noted that, when assessing motions to

dismiss based on a failure to prosecute, courts evaluate the following factors: “(1) the duration of

the plaintiff’s failure to comply with court orders; (2) whether the plaintiff was on notice that

failure to comply would result in dismissal; (3) whether the defendant is likely to be prejudiced by

further delay in the proceedings; (4) a balancing of the court’s interest in managing its docket with

the plaintiff’s interest in a fair chance to be heard; and (5) whether the imposition of sanctions less

drastic than dismissal is appropriate.” Dkt. No. 55 at 13 (citing Lucas v. Miles, 84 F.3d 532, 535

(2d Cir. 1996)). Magistrate Judge Lovric found that because “Plaintiff’s failure to prosecute

delayed this action for less than four months,” Dkt. No. 55 at 17 (emphasis added), and because

the Local Rules state that a “plaintiff’s failure to take action for four (4) months shall be

presumptive evidence of lack of prosecution,” N.D.N.Y. L.R 41.2(a), the first factor weighs against

dismissal. Dkt. No. 55 at 17. The Report-Recommendation also found that, weighing the

remainder of the relevant factors, a reprimand rather than a dismissal is appropriate. Id. at 18. The

Court finds no clear error in this analysis.

B. Motion for Summary Judgment

Next, the Report-Recommendation recommended that the Court grant Defendant’s motion

for summary judgment. Id. at 18-19.2 Magistrate Judge Lovric found that, during the alleged use

2 Magistrate Lovric correctly noted that “where a non-movant willfully fails to respond to a motion

for summary judgment, a district court has no duty to perform an independent review of the record

to find proof of a factual dispute—even if that non-movant is proceeding pro se.” Id. at 14 (citing

Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009)). Thus, the Court’s sole job

is to “assure itself that, based on the undisputed material facts, the law indeed warrants judgment

for the movant.” Id. at 15 (citing in part Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)).

of OC spray, “the undisputed evidence reveals that Defendant was attempting to prevent a physical

altercation between Plaintiff” and another incarcerated individual, “and to obtain compliance from

Plaintiff who was behaving aggressively.” Id. at 19-20 (citing Dkt. No. 41-2 at ¶¶ 18, 22). Such

a use of force, Magistrate Judge Lovric concluded, was constitutionally permissible under the

circumstances. Id. (citing in part Beauvoir v. Falco, 345 F. Supp. 3d 350, 369 (S.D.N.Y. 2018)).

In the alternative, Magistrate Judge Lovric recommended that summary judgment be granted on

qualified immunity grounds because “[c]ourts in this Circuit have generally granted qualified

immunity to officers who used pepper spray against individuals actively resisting or posing a threat

to officers.” Id. at 21 (citing in part Brown v. City of New York, 862 F.3d 182, 189-92 (2d Cir.

2017)). In so finding, Magistrate Judge Lovric noted that Plaintiff refused orders to return to his

cell seven times and was warned twice that if he did not comply, he would be sprayed. Id. (citing

Dkt. No. 41-2 at ¶¶ 18-19). Again, after reviewing the record evidence, the Court finds no clear

error in this analysis.

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. 55, are

ADOPTED for the reasons stated herein; and the Court further

ORDERS that Defendant’s motion for summary judgment, Dkt. No. 41, is GRANTED;

and the Court further

ORDERS that Defendant’s motion to dismiss for failure to prosecute, Dkt. No. 38, is

DENIED; and the Court further

ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on all

parties in accordance with the Local Rules.*

IT IS SO ORDERED.

DATED: _ July 22, 2025 Quine V). } }an aR

Albany, New York Anne M. Nardacci

U.S. District Judge

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