Bennett v. Akshar et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
DeLOVE R. BENNETT,
Plaintiff,
9:25-CV-0426
v. 	(GTS/MJK)
FREDERICK J. AKSHAR, II, Sheriff;
ROBERT CHARPINSKY, Major;
CAPTAIN SCOTT NAYES; and
SAMMY H. DAVIS, Undersheriff;
Defendants.
_______________________________________
APPEARANCES: 	OF COUNSEL:
DeLOVE R. BENNETT, No. 25-B-0628
Plaintiff, Pro Se
Wyoming Correctional Facility
P.O. Box 501
Attica, New York 14011
HON. CHERYL D. SULLIVAN 	JOSHUA T. TERRELL, ESQ.
Broome County Attorney 	Assistant County Attorney
Counsel for Defendants
Broome County Office Building
60 Hawley Street
P.O. Box 1766
Binghamton, New York 13902-1766
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by DeLove R.
Bennett (“Plaintiff”) against Frederick J. Akshar, II, Robert Charpinsky, Captain Scott Nayes,
and Sammy H. Davis (“Defendants”), is United States Magistrate Judge Mitchell J. Katz’s
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Report-Recommendation recommending that Defendants’ motion to dismiss (Dkt. No. 14) be
granted, and that Plaintiff’s cross-motion to amend (Dkt. No. 25) be denied. (Dkt. No. 29.)
Plaintiff has not filed an Objection to the Report-Recommendation, and the time in which to do
so has expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein, including Magistrate Judge Katz’s
thorough Report-Recommendation, the Court can find no clear error in the Report-
Recommendation:1 Magistrate Judge Katz employed the proper standards, accurately recited the
facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is
accepted and adopted in its entirety for the reasons stated therein. (Dkt. No. 29.) To those
reasons, the Court adds only two brief points.
First, although the Report-Recommendation does not expressly address Plaintiff’s related
claim of inadequate conditions of confinement under the Eighth Amendment, the Court finds that
it implicitly did so. This is because the pleading defect identified with regard to Plaintiff’s claim
of deliberate indifference to his serious medical needs under the Eighth Amendment (i.e., the
lack of factual allegations plausibly suggesting the subjective element of that claim) clearly also
plagues his claim of inadequate conditions of confinement under the Eighth Amendment. (See,
e.g., Dkt. No. 29, at 12 (“Here, Bennett’s Second Amended Complaint is devoid of
1 	When no objection is made to a report-recommendation, the Court subjects that report-
recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes:
1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.” Id.;
see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995)
(Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which
no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks omitted).
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any actions or omissions any Defendant took or failed to take.”). The Court finds that Plaintiff
received adequate notice of that fact (through pages 7 through 9 of the Court’s Decision and
Order of July 22, 2025, which recited the elements of Plaintiff’s Eighth Amendment claims), yet
he failed to object to that finding in the Report-Recommendation. (See generally Docket Sheet.)
Second, rather than reserve judgment with regard to Defendants’ challenge to Plaintiff’s
purported Monell claim, or even to deny that portion of their motion without prejudice, the Court
sees no need to issue any ruling at all with regard to that purported claim. This is because the
Court finds that, even when it is construed with the utmost of special leniency, Plaintiff’s Second
Amended Complaint asserts no such claim. (See generally Dkt. No. 11 [Plf.’s Second Am.
Compl., asserting no facts plausibly suggesting such a claim]; Dkt. No. 12 [Decision and Order
of Sept. 19, 2025, liberally construing no such claim].)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Katz’s Report-Recommendation (Dkt. No. 29) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 14) is GRANTED, and
Plaintiff’s Second Amended Complaint (Dkt. No. 11, asserting claims of deliberate indifference
to his serious medical needs and inadequate conditions of confinement under the Eighth
Amendment) is DISMISSED for failure to state a claim; and it is further
ORDERED that Plaintiff’s cross-motion to amend his Second Amended Complaint (Dkt.
No. 25) is DENIED; and it is further
ORDERED that the Clerk of Court shall issue a Judgment for Defendants and close this
action.
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The Court certifies that an appeal from this Decision and Order would not be taken in
good faith.
Dated: April 23, 2026
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
United States District Judge
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