Harvey v. Correction Officers 1 through 6 et al

Filing 115

DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 113 ) is APPROVED and ADOPTED in its entirety. ORDERED, that the two questions remanded by the United States Court of Appeals for the Second Circuit (Dkt. No. 102) are answer ed in the negative, and that (1) the unnamed grievance representative was not a staff member at Downstate; and (2) an inmate member of an IGRC is not a prison official whose alleged affirmative act may bar defendants from relying on an exhaustion de fense. ORDERED, that this action is DISMISSED in its entirety with prejudice based on Plaintiff's failure to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Signed by Senior Judge Lawrence E. Kahn on 7/28/17. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
GREGORY HARVEY,
Plaintiff,
-against-

9:09-CV-0517 (LEK/TWD)

J. JABOUT, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
This matter comes before the Court following an Order and Report-Recommendation

filed on June 16, 2017, by the Honorable Thérèse Wiley Dancks, U.S. Magistrate Judge, pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Dkt. No. 113 (“Report-Recommendation”). Pro se
plaintiff Gregory Harvey filed Objections. Dkt. No. 114 (“Objections”).
II.

LEGAL STANDARD
Within fourteen days after a party has been served with a copy of a magistrate judge’s

report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008), overruled on
other grounds by Widomski v. State Univ. of N.Y. (SUNY) at Orange, 748 F.3d 471 (2d Cir.
2014); see also Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y.

Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and Recommendation must be
specific and clearly aimed at particular findings in the magistrate’s proposal, such that no party
be allowed a second bite at the apple by simply relitigating a prior argument.”). “A [district]
judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” § 636(b). Otherwise, a court “shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id.
III.

DISCUSSION
Harvey makes only one objection to the findings in the Report-Recommendation:

“Plaintiff was told by a Downstate Prison Grievance representative he could not file a grievance
against another prison facility.” Objs. at 1. Yet this objection does not respond to Judge Dancks’s
conclusions that “the unnamed grievance representative was not a staff member at Downstate,”
and that “an inmate member of an [Inmate Grievance Resolution Committee] is not a prison
official whose alleged affirmative act may bar defendants from relying on an exhaustion
defense.” Rep.-Rec. at 18. Thus, since Harvey fails to lodge any specific objections to Judge
Dancks’s thoughtful and well-reasoned Report-Recommendation, the Court has reviewed it for
clear error and found none.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 113) is APPROVED and

ADOPTED in its entirety; and it is further

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ORDERED, that the two questions remanded by the United States Court of Appeals for
the Second Circuit (Dkt. No. 102) are answered in the negative, and that (1) the unnamed
grievance representative was not a staff member at Downstate; and (2) an inmate member of an
IGRC is not a prison official whose alleged affirmative act may bar defendants from relying on
an exhaustion defense; and it is further
ORDERED, that this action is DISMISSED in its entirety with prejudice based on
Plaintiff’s failure to exhaust administrative remedies as required by the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a); and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

July 28, 2017
Albany, New York

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