Winfield v. DeRasso et al

Filing 215

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Having conducted a review of the full record and the applicable law, the Court adopts Judge Shieldss Report and Recommendation in its entirety and orders that a hearing will be held on exhaustion. The Court will issue a separate scheduling order regarding the hearing. Defendants are directed to serve a copy of this Order to plaintiff. So Ordered by Judge Joan M. Azrack on 9/30/2016. (c/m to pro se) (Ortiz, Grisel)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------------X JOAQUIN R. WINFIELD, For Online Publication Only Plaintiff, ORDER 07-CV-4570 (JMA) (AYS) -againstROBERT DEROSSO, SGT. JOHN DOE, SGT. NICHOLAS DESIMONE, WESLEY BEDNOSKY, DENNIS HORL, & SUFFOLK COUNTY, Defendants. -----------------------------------------------------------------------X AZRACK, United States District Judge: FILED  CLERK    9/30/2016 2:16 pm   U.S. DISTRICT COURT  EASTERN DISTRICT OF NEW YORK  LONG ISLAND OFFICE  Before the Court is Magistrate Judge Shields’s Report and Recommendation (the “R & R”), recommending that defendants’ motion for summary judgment be denied. Timely objections have been filed. Having conducted a review of the full record and the applicable law, the Court adopts Judge Shields’s Report and Recommendation in its entirety and orders that a hearing will be held on exhaustion. Pro se plaintiff Joaquin Winfield has sued defendants pursuant to 42 U.S.C. § 1983 (“Section 1983”), alleging that he was physically assaulted and denied appropriate medical care while imprisoned at the Suffolk County Correctional Facility. Defendants moved for summary judgment, arguing that plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (the “PLRA”). Based on the parties’ submissions, Judge Shields found that there were questions of material fact regarding whether plaintiff timely filed a grievance and whether the grievance procedure was available. As a result, Judge Shields recommended that I deny summary judgment. In response to Judge Shields’s R & R, defendants have produced additional evidence regarding plaintiff’s alleged filing of a grievance. However, given the questions as to plaintiff’s 1 credibility and that defendants submitted this evidence in their objection, the Court will hold a hearing on the issue of exhaustion. The Court will issue a separate scheduling order regarding the hearing. Defendants are directed to serve a copy of this Order to plaintiff. SO ORDERED. Dated: September 30, 2016 Central Islip, New York /s/ (JMA) JOAN M. AZRACK UNITED STATES DISTRICT JUDGE 2

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