Shields v. United States , 446 F. App'x 325 ( 2011 )


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  •     10-3627-pr
    Shields v. United States
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
    FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
    PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
    DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
    ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 28th day of October, two thousand eleven.
    PRESENT:
    GERARD E. LYNCH,
    DENNY CHIN,
    SUSAN L. CARNEY,
    Circuit Judges.
    _____________________________________
    Thomas Shields,
    Plaintiff-Appellant,
    v.                                              10-3627-pr
    United States of America, Federal Bureau of
    Prisons,
    Defendant-Appellee.
    _____________________________________
    FOR APPELLANT:                     Thomas Shields, pro se, Butner, North Carolina.
    FOR APPELLEES:                     Paula Ryan Conan, Charles E. Roberts, Assistant United
    States Attorneys, for Richard S. Hartunian, United States
    Attorney for the Northern District of New York, Syracuse,
    New York.
    Appeal from a judgment of the United States District Court for the Northern
    District of New York (Mordue, C.J.; Peebles, M.J.).
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
    AND DECREED that the judgment of the district court is AFFIRMED.
    Plaintiff-appellant Thomas Shields, proceeding pro se, filed this action under the
    Federal Tort Claims Act, 
    28 U.S.C. §§ 2671
     et seq., alleging medical malpractice and
    ordinary negligence in connection with his fall from a set of bleachers at the Federal
    Corrections Institution in Ray Brook, New York. During pre-trial proceedings, the
    magistrate judge overseeing the case denied Shields’s motion to have an expert medical
    witness appointed at the court’s expense. After discovery was complete, the district court
    granted summary judgment for the government on both the medical malpractice and
    ordinary negligence claims. On appeal, Shields challenges both the ruling of the
    magistrate judge and the grant of summary judgment. We assume the parties’ familiarity
    with the underlying facts and the procedural history of the case.
    Citing New York state law and Federal Rule of Evidence 706, Shields argues that
    the magistrate judge erred in denying his motion to appoint a medical expert to “assist and
    support” him in the pursuit of his claims. However, Shields failed to object to this ruling
    before the district court or to renew his motion at a later date, which he might have done
    given that the magistrate judge denied it without prejudice. It is well established that
    “[a]s a rule, a party’s failure to object to any purported error or omission in a magistrate
    judge’s report waives further judicial review of the point.” Cephas v. Nash, 
    328 F.3d 98
    ,
    2
    107 (2d Cir. 2003). This rule applies equally to pro se and counseled litigants and
    operates “even absent express notice from the magistrate judge that failure to object
    within ten days will preclude appellate review.” Caidor v. Onondaga Cnty., 
    517 F.3d 601
    , 605 (2d Cir. 2008).
    Shields also argues that the district court erred in awarding summary judgment for
    the defendants. We review summary judgment rulings de novo, focusing on whether,
    “construing the evidence in the light most favorable to the non-movant, ‘there is no
    genuine dispute as to any material fact and the movant is entitled to judgment as a matter
    of law.’” Doninger v. Niehoff, 
    642 F.3d 334
    , 344 (2d Cir. 2011), quoting Fed. R. Civ. P.
    56(a). Here, an independent review of the record and relevant case law reveals that the
    district court properly granted summary judgment to the government.
    Shields concedes that under New York law, which governs this case, “it is
    incumbent upon the plaintiff to present expert testimony in support of the allegations to
    establish a prima facie case of [medical] malpractice.” Sitts v. United States, 
    811 F.2d 736
    , 739 (2d Cir. 1987), citing Alvarez v. Prospect Hosp., 
    501 N.E.2d 572
    , 576 (N.Y.
    1986). As Shields failed to adduce any such evidence, the district court properly
    concluded that the government was entitled to summary judgment on his malpractice
    claim.
    For similar reasons, the district court did not err in awarding summary judgment to
    the government on Shields’s claim that prison officials were negligent in failing to
    properly secure the bleachers. Causation is an essential element of any ordinary
    3
    negligence claim under New York law. See Stagl v. Delta Airlines, Inc., 
    52 F.3d 463
    ,
    467 (2d Cir. 1995), citing Solomon v. City of New York, 
    489 N.E.2d 1294
    , 1294 (N.Y.
    1985). Absent evidence to support his contention that the injuries of which he
    complained were proximately caused by his fall from the bleachers, Shields could not
    carry his burden of establishing a prima facie case of ordinary negligence.
    We have considered all of Shields’s remaining arguments and find them to be
    without merit. Accordingly, we AFFIRM the judgment of the district court.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    4
    

Document Info

Docket Number: 10-3627-pr

Citation Numbers: 446 F. App'x 325

Judges: Lynch, Chin, Carney

Filed Date: 10/28/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024