Gibson v. Ingraham, et al.

Filing 241

DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 232 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendants Maher, Allen, Bushane, and Schreurs' Motion (Dkt. No. 218 ) for partial summary judgement is GRANTED. Signed by Senior Judge Lawrence E. Kahn on 12/15/14. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BENNIE GIBSON,
Plaintiff,
-against-

9:10-cv-0968 (LEK/TWD)

BRIAN FISCHER, et al.,
Defendants.

DECISION and ORDER
I.

INTRODUCTION
This civil rights action comes before the Court following a Report-Recommendation filed on

October 23, 2014, by United States Magistrate Judge Thérèse Wiley Dancks, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3(d). Dkt. No. 232 (“Report-Recommendation”). Judge Dancks
recommends that Defendants Maher, Allen, Bushane, and Schreurs’ (collectively, “Defendants”)
Motion for partial summary judgment be granted. Report-Rec.; Dkt. No. 218 (“Motion”). Plaintiff
Bennie Gibson (“Plaintiff”) timely filed Objections. Dkt. Nos. 235 (“Objections”); 238, 239, 240
(collectively, “Supplemental Objections”). For the following reasons, the Report-Recommendation
is adopted in its entirety.
II.

STANDARD OF REVIEW
When a party makes a timely objection to a Report-Recommendation, it is the duty of the

Court to “make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b). Where, however,
an objecting “party makes only conclusory or general objections, or simply reiterates his original
arguments, the Court reviews the Report and Recommendation only for clear error.” Farid v.

Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d
672, 679 (S.D.N.Y. 2007)) (citations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL
599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). “A [district] judge . . . may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b).
III.

DISCUSSION
Plaintiff’s Objections challenge Judge Dancks’ finding that Plaintiff failed to exhaust

administrative remedies regarding his excessive force claim. See generally Objs. Liberally
construed, Plaintiff first argues that he did in fact file a grievance regarding excessive force by Allen
and Maher. Id. at 2-3. In support, Plaintiff has submitted voluminous Exhibits, which—although
neither cited nor referenced in Plaintiff’s Objections or Supplemental Objections—presumably are
intended to reveal that this grievance was indeed filed. The Court has carefully reviewed the
entirety of Plaintiff’s Exhibits and has found no grievance, or even a remote reference, to the use of
force by Allen and Maher. See Dkt. Nos. 240-1 through 5. Plaintiff’s Exhibits concern grievances
and administrative proceedings regarding other named Defendants in this action, but do not address
in any way the claims against Maher and Allen. See id. Therefore, Plaintiff has failed to
demonstrate that he filed a grievance regarding the incident with Maher and Allen.
Plaintiff next argues that he was prevented from filing a grievance regarding the incident
with Maher and Allen. Objs. at 2-3. Specifically, Plaintiff argues that immediately following the
incident, which occurred at Adirondack Correctional Facility (“Adirondack”), he was transferred to
Upstate Correctional Facility (“Upstate”), and officials at Upstate informed Plaintiff that they would
not accept a grievance regarding an incident at Adirondack. Id. First, this argument directly

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contradicts Plaintiff’s initial argument that he “did indeed meet with defendants greivance and
exhuasted [sic].” Id. at 2. Plaintiff could not have both filed his grievance and been simultaneously
prevented from filing that same grievance. Moreover, even construing Plaintiff’s argument with the
utmost leniency, it is directly contradicted by evidence in the record. Plaintiff conceded in his
deposition that after his transfer to Upstate, he successfully filed numerous grievances regarding
incidents at Adirondack. Dkt. No. 218-7 at 35. Finally, Plaintiff has offered no evidence to support
his conclusory allegation that correctional officers prevented him from filing this particular
grievance or that he attempted to follow all of the steps of the grievance process. Therefore,
Plaintiff has failed to demonstrate that he was prevented from filing a grievance regarding the
incident with Maher and Allen.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 232) is APPROVED and

ADOPTED in its entirety; and it is further
ORDERED, that Defendants Maher, Allen, Bushane, and Schreurs’ Motion (Dkt. No. 218)
for partial summary judgement is GRANTED; 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:

December 15, 2014
Albany, NY

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