Bailey v. Fortier

Filing 54

MEMORANDUM-DECISION AND ORDER: ORDERED that Michael J. Sciotti, Esq. is TERMINATED as counsel for Bailey effective immediately. ORDERED that 49 Report and Recommendation is adopted in its entirety. ORDERED that Bailey's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 1/25/13. (Attachments: # 1 r&r of Judge Peebles) {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
EVERTON BAILEY,
Plaintiff,

9:09-cv-742
(GLS/DEP)

v.
M. FORTIER,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Hancock, Estabrook Law Firm
1500 AXA Tower I
Syracuse, NY 13221
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
P.O. Box 7198
100 South Clinton Street
Syracuse, NY 13261-7198

MICHAEL J. SCIOTTI, ESQ.

CHARLES E. ROBERTS
Assistant U.S. Attorney

Gary L. Sharpe
Chief Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Everton Bailey commenced this action pro se against
defendant Michelle Fortier, a corrections officer at FCI Ray Brook, under

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971). (See Compl., Dkt. No. 1.) After Fortier raised the
issue of exhaustion, (see, e.g., Dkt. No. 10, Attach. 1 at 5-12), Magistrate
Judge David E. Peebles determined—and the court concurred—that
dismissal of Bailey’s claim on that ground was inappropriate. (See Dkt.
Nos. 19, 21.) Accordingly, Bailey was granted limited discovery on the
issue of exhaustion, which culminated in an evidentiary hearing before
Judge Peebles in June 2012.1 (See Dkt. No. 21; Tr.2 at 2:13-21.) After
receiving testimony and considering the parties’ supplemental briefs, Judge
Peebles issued a Report-Recommendation and Order (R&R) on October 4,
2012, wherein he recommended that Bailey’s Complaint be dismissed for
failure to comply with the exhaustion requirements of 42 U.S.C. §
1997e(a).3 (See generally R&R, Dkt. No. 49.) Pending are Bailey’s

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Additionally, Judge Peebles appointed attorney Michael Sciotti to
represent Bailey during the evidentiary hearing. (See Dkt. No. 28.) In
furtherance of that appointment, attorney Sciotti filed both a post-hearing
brief and the pending objections to the Report-Recommendation and
Order. (See Dkt. Nos. 45-46, 50.)
2

Page references preceded by “Tr.” refer to the transcript of the
evidentiary hearing conducted on June 20, 2012. (See Dkt. No. 44.)
3

The Clerk is directed to append the R&R to this decision, and
familiarity therewith is presumed.
2

objections to the R&R. (See Dkt. No. 50.) For the reasons that follow, the
R&R is adopted in its entirety, and Bailey’s Complaint is dismissed.
II. Standard of Review
Before entering final judgment, this court routinely reviews all reportrecommendation and orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006).
However, the court “may not reject the magistrate judge’s credibility
findings,” unless it “has the opportunity to observe and evaluate witness
credibility in the first instance.” United States v. Preston, 635 F. Supp. 2d
267, 269 (W.D.N.Y. 2009) (citing Cullen v. United States, 194 F.3d 401,
407 (2d Cir. 1999)). Where no party has filed an objection, only vague or
general objections are made, or a party resubmits the same papers and
arguments already considered by the magistrate judge, this court reviews
the findings and recommendations of the magistrate judge for clear error.
See Almonte, 2006 WL 149049, at *4-5.
III. Discussion
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Bailey argues that Judge Peebles failed to consider the testimony of
Stevie Simmons, Bailey’s cellmate, and reached improper conclusions on
the issues of estoppel and special circumstances. (See Dkt. No. 50. at 38.) Fortier counters each of these assertions, arguing that Judge Peebles’
decision was correct in all respects. (See Dkt. No. 53 at 2-7.) The court,
having conducted a de novo review of Bailey’s objections, agrees with
Fortier.
First, Simmons’ testimony was, as Fortier notes, irrelevant. (See id.
at 2-3.) Besides being unable to recall, among other things, the names of
the staff members who allegedly refused to provide Bailey the grievance
forms, (see Tr. at 121:7-122:14), Simmons was not Bailey’s cellmate in
February or March of 2009, (compare Tr. at 120:1-15, with Compl. ¶ 8).
Because an inmate generally has only twenty calendar days to file a
grievance, (see R&R at 5), the alleged refusal of unnamed staff members
to provide Bailey with grievance forms six months after the incident in
question is of no moment, (see Dkt. No. 53 at 2-3). It follows that Judge
Peebles correctly disregarded Simmons’ testimony.4
4

The fact that Judge Peebles did not explicitly discuss Simmons’
testimony is also inconsequential, as there is no evidence that he did not
consider it. (See generally R&R.) Simmons not only testified at the
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Second, Bailey’s estoppel argument is meritless. (See Dkt. No. 50 at
4-6.) As relevant here, a defendant is only estopped from asserting the
exhaustion defense if she, through her “own actions inhibit[ed] the inmate’s
exhaustion of remedies.” Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.
2004); (see R&R at 19.) Here, Bailey has never alleged that Fortier
precluded him from filing a grievance; rather he has repeatedly stated that
other officials at FCI Ray Brook did so. (See R&R at 19-20; Compl. ¶ 6;
Dkt. No. 11 at 1-5; Tr. at 86:18-97:16; Dkt. No. 50 at 5.) Thus, Judge
Peebles correctly found that Fortier was not estopped from asserting the
exhaustion defense.
Bailey’s final claim, that Judge Peebles erred in finding that no
special circumstances existed to excuse his failure to exhaust, is
unpersuasive. (See Dkt. No. 50 at 6-8.) Because Bailey was
unquestionably familiar with the grievance program at FCI Ray Brook, (see,
e.g., R&R at 21), his failure to exhaust can only be excused if something
“rendered the grievance appeal process unavailable to him,” Murray v.
Palmer, No. 9:03-CV-1010, 2010 WL 1235591, at *6 (N.D.N.Y. Mar. 31,

hearing before Judge Peebles, but Bailey also submitted proposed
findings of fact and conclusions of law based on his testimony. (See Tr. at
119:13-123:25; Dkt. No. 45 ¶ 12.)
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2010) (internal quotation marks and citations omitted). In finding that no
special circumstances existed, Judge Peebles’ credited the testimony of
Fortier’s witnesses—each of whom testified that Bailey never asked for the
grievance forms—and discredited Bailey’s testimony to the contrary. (See
R&R at 8, 22.) Given that this finding rests on an assessment of credibility,
which neither party has challenged, there is no basis to disturb it.5 See
Cullen, 194 F.3d at 407; (see generally Dkt. Nos. 50, 53.) Necessarily
then, the court adopts Judge Peebles’ finding that Bailey was not denied
access to the grievance program, as well as his conclusion with respect to
the existence of special circumstances. (See R&R at 21-22.)
In sum, having reviewed the specific objections de novo and the
remainder of the R&R for clear error, and finding none, the court adopts it
in its entirety.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Michael J. Sciotti, Esq. is TERMINATED as counsel
for Bailey effective immediately; and it is further
5

Even if the parties had challenged it, the court, having reviewed
the record as whole, discerns no reason to conduct an independent
credibility assessment.
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ORDERED that Magistrate Judge David E. Peebles’ October 4, 2012
Report-Recommendation and Order (Dkt. No. 49) is ADOPTED in its
entirety; and it is further
ORDERED that Bailey’s Complaint (Dkt. No. 1) is DISMISSED; and it
is further
ORDERED that the Clerk shall close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 25, 2013
Albany, New York

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