Opinion
No. 9:07-cv-471 (GLS/DRH).
February 24, 2010
FOR THE PLAINTIFF: Kevin V. Byng, Pro se, Utica, NY.
FOR THE DEFENDANTS: ROBERT P. ROCHE, ESQ., County Defendants, Office of Robert P. Roche, Albany, NY.
KAREN A. BUTLER, ESQ., KELLY M. MONROE, ESQ., WILLIAM C. FIRTH, ESQ., CMS Defendants, Thuillez, Ford Law Firm, Albany, NY.
MEMORANDUM-DECISION AND ORDER
I. Introduction
Pro se plaintiff Kevin Byng, formerly incarcerated at the Albany County Correctional Facility, brings this action under Title II of the ADA, § 504 of the Rehabilitation Act, and 42 U.S.C. § 1983. ( See 2d Am. Compl. ¶ 20, Dkt. No. 100.) Byng alleges that defendants, Albany County Sheriff's Department and three of its employees, and Correctional Medical Services, Inc. (CMS) and five of its employees, violated his rights under the Eighth, Ninth, and Fourteenth Amendments. ( See id.) CMS defendants and County defendants filed motions for summary judgment. (Dkt. Nos. 112, 125.) Byng subsequently moved to strike certain affidavits submitted by County defendants. (Dkt. No. 194.) In a Report-Recommendation and Order (R R) filed on October 13, 2009, Magistrate Judge David R. Homer denied Byng's motion to strike and recommended that CMS defendants' motion should be granted, and that County defendants' motion should be granted in part and denied in part. (Dkt. No. 199.) Pending are County defendants' objections to the R R, (Dkt. No. 202), and Byng's objections to the R R and responses to defendants' objections, (Dkt. Nos. 201, 204, 205, 208). For the reasons that follow, the R R is adopted in its entirety.
Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
The Clerk is directed to append the R R to this decision, and familiarity therewith is presumed.
II. Discussion
The court incorporates the factual recitations contained in Judge Homer's R R. ( See R R at 3-14, Dkt. No. 199.)
A. Order Denying Motion to Strike
In deciding non-dispositive pretrial issues, magistrate judges in this district are afforded the broadest discretion, and will be reversed only when that discretion is abused. See Miller v. Loughren, 258 F. Supp.2d 61, 61 (N.D.N.Y. 2003) (citation omitted). This court will modify or set aside any portion of the magistrate judge's non-dispositive order only if it is found to be "clearly erroneous or contrary to law." FED. R. CIV. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). Because Judge Homer's denial of plaintiff's motion to strike the County defendants' affidavits was not an abuse of discretion, clearly erroneous, or contrary to law, it is affirmed.
B. Report-Recommendation and Order
1. County Defendants' Objections
See Almonte v. N.Y. State Div. of Parole2006 WL 149049See id. See generally Anderson v. Liberty Lobby, Inc.477 U.S. 242255
2. Byng's Objections
Byng has filed several submissions which the court will treat as serial objections to Judge Homer's R R. ( See Dkt. Nos. 201, 204, 205, 208.) However, Byng's objections either contest inconsequential aspects of Judge Homer's factual findings, or are non-specific, conclusory, and fail to address the recommendations. Thus, upon review of the R R for clear error, the court finds that Judge Homer correctly concluded that the remaining claims — minus the excessive force claim — against the CMS and County defendants should be dismissed.
In response to Byng's continued opposition to the kind of treatment he received, the court reiterates that "[m]ere disagreement over proper treatment does not create a constitutional claim . . . [s]o long as the treatment is adequate. . . ." Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (citation omitted); see also Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 312 (S.D.N.Y. 2001) ("[D]isagreements over medications, diagnostic techniques . . ., forms of treatment, or the need for specialists . . . are not adequate grounds for a Section 1983 claim.").
In closing, the court is satisfied that the remainder of the R R contains no clear error.
III. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Homer's order denying Byng's motion to strike is AFFIRMED; and it is further
ORDERED that Magistrate Judge Homer's October 13, 2009 Report-Recommendation and Order is adopted; and it is further
ORDERED that CMS defendants' motion for summary judgment (Dkt. No. 112) is GRANTED and Byng's claims against CMS defendants are DISMISSED and Correctional Medical Services, Inc., Dr. Robinowitz, Dr. Salzman, Rich, Debbie, Gloria Cooper, and Jill Harrington are hereby terminated from this action; and it is further
ORDERED that County defendants' motion for summary judgment (Dkt. No. 125) is DENIED in part as to Byng's claim against D. Delong and M. Rose for excessive force; and it is further
ORDERED that County defendants' motion for summary judgment (Dkt. No. 125) is GRANTED insofar as Byng's remaining claims against County defendants are DISMISSED and James Campbell and Albany County Sheriff's Department are hereby terminated from this action; and it is further
ORDERED that the Clerk provide copies of this Memorandum-Decision and Order to the parties.