Pulley v. Sposato et al

Filing 50

ORDER ADOPTING REPORT AND RECOMMENDATIONS - For the reasons set forth herein, defendant's objections are overruled, the Report is accepted in its entirety, and for the reasons set forth in the Report, summary judgment is granted in favor of defe ndant dismissing plaintiff's claims with respect to the quality of the food during his incarceration in their entirety with prejudice for failure to exhaust his administrative remedies, but plaintiff has exhausted his available administrative remedies with respect to his grievances concerning the temperature and vermin in his cell and is entitled to a trial on the merits as to those claims. SO Ordered by Judge Sandra J. Feuerstein on 2/14/2018. (Tirado, Chelsea)

FI LED
IN CLERK'S OFFICE
U.S. DISTRICT
IRT E.D.N.Y.

*

r,.,,

FEB 14 2018

LONG ISLAND OFFICE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-~------------------------------------------------~-------------------){
CARLETON PULLEY,
Plaintiff,
-against-

12-CV-0786 (SJF)(SIL)
ORDER

COUNTY OF NASSAU,
Defendant.

----------------------------------------------------------------------){
FEUERSTEIN, District Judge:
Pending before the Court are the objections of defendant County of Nassau ("defendant")
to so much of the Report and Recommendation of the Honorable Steven I. Locke, United States
Magistrate Judge, dated December 11, 2017 ("the Report"), as recommends, following an
evidentiary hearing, that an order be entered "concluding that Plaintiff has exhausted his
available administrative remedies with respect to his grievance concerning the temperature i[n]
his cell and mice and cockroaches in his cell . . . [and] is entitled to a trial on the merits as to
th[o]se claims." (Report at 9). For the reasons

s~ated

herein, Magistrate Judge Locke's Report is

accepted in its entirety.

I.

Standard of Review
Any party may serve and file written objections to a report and recommendation of a

magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and
recommendation to which a timely objection has been made is reviewed de novo. See 28 U.S.C.

1

*

§ 636(b)(1); Fed. R. Civ. P. 72(b)(3). However, to accept the report and recommendation of a
magistrate judge to which no specific, timely objection has been made, the district judge need
only be satisfied that there is no clear error apparent on the face of the record. See Fed. R. Civ. P.
72(b); Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000)
(a court may review a report to which no timely objection has been interposed to determine
whether the magistrate judge committed “plain error.”)
Whether or not proper objections have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b).

II.

Findings and Conclusion to which No Objections Made
Plaintiff does not assign any error to, inter alia, Magistrate Judge Locke’s (i) finding that

his testimony regarding his conversation with Correction Officer Anthony Marcolini
(“Marcolini”) was not credible, (see Report at 6); or (ii) conclusions that Marcolini “did not
make the threat as Plaintiff alleges[,]” (id. at 7), and that plaintiff failed to exhaust his
administrative remedies with respect to the quality of the food during his incarceration. (See Id.
at 9). There being no clear error on the face of the Report with respect to those findings and
conclusions, they are accepted in their entirety. Accordingly, for the reasons set forth in the
Report, summary judgment is granted in favor of defendant dismissing plaintiff’s claims with
respect to the quality of the food during his incarceration for failure to exhaust his administrative
remedies.

2

III.

Defendant’s Objections
Defendant contends, inter alia, that Magistrate Judge Locke erred in “credit[ing] a

second– completely different– excuse for Plaintiff’s failure to exhaust all administrative remedies
before bringing suit: that even though Plaintiff did not read, and was not familiar with, the
NCCC’s grievance procedures[,] . . . the NCCC’s grievance procedures were so ‘opaque’ and
‘confusing’ that ‘no reasonable prisoner’ could have ‘navigated’ them properly . . . .” (Def. Obj.
at 13) (citations omitted). However, plaintiff specifically raised the issue of the “constructive
unavailability” of the NCCC’s grievance procedures in his post-hearing memorandum of law,
and defendant was afforded an opportunity, and in fact did, respond to those arguments.
Upon de novo review of the Report and all motion papers, and consideration of
defendant’s objections to the Report and plaintiff’s response thereto, defendant’s objections are
overruled and so much of the Report as recommends that an order be entered “concluding that
Plaintiff has exhausted his available administrative remedies with respect to his grievance
concerning the temperature i[n] his cell and mice and cockroaches in his cell . . . [and] is entitled
to a trial on the merits as to th[o]se claims[,]” (Report at 9), is accepted in its entirety.

IV.

CONCLUSION
For the reasons set forth herein, defendant’s objections are overruled, the Report is

accepted in its entirety and, for the reasons set forth in the Report, summary judgment is granted
in favor of defendant dismissing plaintiff’s claims with respect to the quality of the food during
his incarceration in their entirety with prejudice for failure to exhaust his administrative
remedies, but plaintiff has exhausted his available administrative remedies with respect to his
3

grievances concerning the temperature and vermin in his cell and is entitled to a trial on the
merits as to those claims.

SO ORDERED.
__________/s/___________
Sandra J. Feuerstein
United States District Judge
Dated: February 14, 2018
Central Islip, New York

4