Opinion
02 Civ. 6240 (KMW).
March 27, 2007
MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Eugene C. Smith brought this action, pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated when he was bitten by a police dog handled by Defendant Edward Potanovic, an officer of the Yonkers Police Department, during Plaintiff's arrest on November 28, 2000. Defendant moved for summary judgment. By Report and Recommendation dated January 23, 2007 (the "Report"), Magistrate Judge Debra Freeman recommended that summary judgment be granted with respect to all Plaintiff's claims but one: his claim that Defendant's failure to recall the dog once force was no longer required constituted excessive force. Plaintiff has filed a notice of his objections to the Report. For the reasons stated below, the Court agrees with the Report, and the motion for summary judgment is granted in part and denied in part.
DISCUSSION A. The Entire Report Should Be Reviewed for Clear Error
Plaintiff filed a notice of objection to the Report's conclusion that summary judgment be granted in part. Plaintiff's objection reads, "Pursuant to 28 U.S.C. 636(1) and Rule 72(b) of the Federal Rules of [] Civil Procedure[,] Plaintiff Smith[] is filing his objections to the United States Magistrate Judge Debra Freeman['s] report and recommendation decision on January 24, 2007, on the qualified sover[e]ign immunity and the conclusion [that] P.O. Potanovic['s] motion for summary judgment be granted." (Notice of Objections 1, Feb. 19, 2007.)
This objection is not "specific," and the Report's conclusion that summary judgment be granted in part should therefore be reviewed for clear error. The Court must make a de novo determination of any portion of a report and recommendation to which a party files "specific" written objections. Fed.R.Civ.P. 72(b); see also 28 U.S.C. § 636(b)(1). However, the Court should review a report for clear error if a party's written objections are "`perfunctory'" responses that merely restate the arguments set forth in the original petition. Edwards v. Fischer, 414 F. Supp. 2d 342, 346 (S.D.N.Y. 2006) (quoting Vega v. Artuz, No. 97 Civ. 3775 (LTS) (JCF), 2002 U.S. Dist. LEXIS 18270, at *3 (S.D.N.Y. Sept. 30, 2002)); accord Klawitter v. Chater, No. 93-CV-0054E(H), 1995 U.S. Dist. LEXIS 16162, at *1-2 (W.D.N.Y. Oct. 18, 1995); Vargas v. Keane, No. 93 Civ. 7852 (MBM), 1994 U.S. Dist. LEXIS 17701, at *3-4 (S.D.N.Y. Dec. 12, 1994). Plaintiff's objection is of the latter variety: it is not specific, because it states only that Plaintiff disagrees with the Report, without giving any reason why the Report's conclusions are wrong.
Neither party has objected to the portion of the Report recommending that the motion for summary judgment be denied in part. The Court should therefore review this portion of the Report for clear error. Fed.R.Civ.P. 72(b) advisory committee's note; see also Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985).
B. The Court Agrees with the Report
Magistrate Judge Freeman made the recommendations stated below. (1) Defendant is entitled to summary judgment on any claim against him in his official capacity, because he enjoys immunity from suit under the Eleventh Amendment. (2) Defendant is entitled to summary judgment on any claim that he lacked justification for using a police dog to locate Plaintiff and secure his arrest, because Plaintiff was trying to hide from the police and because Plaintiff posed an immediate threat to Defendant and others. (3) Defendant is entitled to summary judgment on any claim that he failed to warn Plaintiff that the dog would be released: because there is no "clearly established" right to warnings about the release of dogs, Defendant enjoys qualified immunity for his actions. (4) Summary judgment should be denied with respect to any claim (including any claim for punitive damages) that Defendant failed to recall the dog until an inordinate period of time had elapsed, because there is a genuine issue of material fact about whether Defendant's actions constituted the use of excessive force in violation of a clearly established right. (5) Defendant is entitled to summary judgment with respect to Plaintiff's claim that Defendant failed to supervise the dog, because such a claim is not cognizable under Section 1983.
The Court finds Magistrate Judge Freeman's recommendations to be thoughtful and well reasoned. The Report is free of clear error on the face of the record. The Court therefore accepts and adopts the Report.
CONCLUSION
For the reasons stated above, the motion for summary judgment is (1) DENIED with respect to Plaintiff's claim against Defendant, in his individual capacity, that Defendant's failure to recall the dog once force was no longer required constituted excessive force, and (2) GRANTED with respect to all other claims.
SO ORDERED.