Mateo v. Gundrum et al

Filing 67

MEMORANDUM-DECISION AND ORDER: ORDERED that 64 Report and Recommendation is adopted in its entirety. ORDERED that 60 Motion for Summary Judgment is granted. Signed by Chief Judge Gary L. Sharpe on 9/30/13. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CESAR MATEO,
Plaintiff,

9:10-cv-1103
(GLS/TWD)

v.
M. GUNDRUM et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Cesar Mateo
Pro Se
01-A-4789
Woodbourne Correctional Facility
99 Prison Road
PO Box 1000
Woodbourne, NY 12788
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

JAMES SEAMAN
Assistant Attorney General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Cesar Mateo commenced this action against

defendants M. Gundrum, Martin, and Mohammed Khair pursuant to 42
U.S.C. § 1983, alleging retaliation under the First and Fourteenth
Amendments and cruel and unusual punishment under the Eight
Amendment. (2d Am. Compl., Dkt. No. 39.) After filing an answer,
defendants moved for summary judgment. (Dkt. Nos. 53, 60.) In a ReportRecommendation and Order (R&R) dated August 30, 2013, Magistrate
Judge Therèse Wiley Dancks recommended that defendants’ motion be
granted and Mateo’s second amended complaint be dismissed. (Dkt. No.
64.) For the reasons that follow, the R&R is adopted in its entirety.
II. Background
On September 8, 2010, Mateo, a prisoner in the custody of the New
York State Department of Corrections and Community Supervision, was
incarcerated in Coxsackie Correctional Facility. (Defs.’ Statement of
Material Facts (SMF) ¶¶ 23-24, Dkt. No. 60, Attach. 20.) As he was
leaving the mess hall that morning, Mateo realized that he had picked up
someone else’s book mistakenly, believing it to be his own. (Id. ¶¶ 25-27.)
Mateo noticed that another inmate had his book, which caused him to ask
that inmate to exchange books. (Id. ¶¶ 27-28.) Correctional officer
Gundrum issued Mateo and the other inmate misbehavior reports; Mateo
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was charged with creating a disturbance and disregarding directions
related to inmate movement. (Id. ¶¶ 32-34.) Two days later, Martin, a
supervising correctional officer, held a hearing on those charges. (Id.
¶¶ 35, 37.) According to Mateo, Martin threatened him at the hearing. (Id.
¶¶ 38-39.) Mateo was found guilty by Martin and was penalized. (Id.
¶ 40.)
On June 29, 2010, Mateo sought medical treatment for tooth pain
from Dr. Khair, who is a dentist at Coxsackie. (Id. ¶¶ 5, 44.) Dr. Khair
reviewed Mateo’s dental history, which revealed that on two prior
occasions dentists recommended that Mateo receive treatment for tooth
decay in tooth number thirteen. (Id. ¶¶ 46-47.) Upon examination, Dr.
Khair found severe decay in that tooth and provided the necessary
treatment to assuage it. (Id. ¶¶ 49-50.)
III. Standard of Review
Before entering final judgment, this court routinely reviews all report
and recommendation 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.
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04-cv-484, 2006 WL 149049, at *6–7 (N.D.N.Y. Jan. 18, 2006). In those
cases where no party has filed an objection, or only a vague or general
objection has been filed, this court reviews the findings and
recommendations of the magistrate judge for clear error.1 See id.
IV. Discussion
Mateo objects to the R&R on the following grounds: (1) Judge
Dancks overlooked Magistrate Judge George H. Lowe’s prior R&R “which
clearly found that special circumstances existed and were plausibly alleged
to justify [his] not pursuing the grievance system”; (2) a similar case, Mateo
v. Bristow, No. 12 Civ. 5052(RJS), 2013 WL 3863865, at *3 (S.D.N.Y. July
16, 2013), in which Mateo is the plaintiff could not be resolved on the issue
of exhaustion; and (3) Judge Dancks “clearly ignored or erred in not
addressing the claim against [Dr.] Khair.” (Dkt. No. 65 ¶¶ 3-6, 8-9.) These
objections are without merit.
First, Judge Lowe’s R&R, dated August 30, 2011, did not address
whether Mateo had demonstrated special circumstances that excused his

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“[A] report is clearly erroneous if the court determines that there is
a mistake of fact or law which is obvious and affects substantial rights.”
Almonte, 2006 WL 149049, at *6.
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failure to exhaust administrative remedies, and no such argument was
raised by defendants. (Dkt. No. 27, Attach. 3; Dkt. No. 32.) More
fundamentally, Mateo’s amended complaint was before Judge Lowe, not
his second amended complaint, which alleges different claims against
different defendants, (compare Am. Compl., Dkt. No. 21, with 2d Am.
Compl.); and defendants have raised new arguments in opposition to the
operative pleading, including Mateo’s failure to exhaust his administrative
remedies, (compare Dkt. No. 27, Attach. 3, with Dkt. No. 60, Attach. 21).
Accordingly, Mateo is simply mistaken in his belief that Judge Lowe’s R&R
has any impact upon the R&R now before the court.
Next, Bristow is of no moment here. The facts and circumstances of
that case are different than those involved in the present case.
Accordingly, Mateo’s objection on this ground is without merit.
Lastly, Mateo’s claim that Judge Dancks “clearly ignored or erred in
not addressing [his] claim[s] against [Dr.] Khair,” (Dkt. No. 65 ¶¶ 8-9), is
similarly misguided. The exhaustion requirement pertains to all claims, see
42 U.S.C. § 1997e(a), and Mateo admits that he failed to “present the facts
relating to [his second amended] complaint in th[e] grievance program,” (2d
Am. Compl. at 2). Accordingly, Judge Dancks’ recommendation that
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Mateo’s claims be dismissed for his failure to exhaust administrative
remedies required no separate analysis of the merits of his claims against
Dr. Khair. (Dkt. No. 65 ¶¶ 8-9.) Finding no merit in Mateo’s objections, the
court adopts the R&R in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Therèse Wiley Dancks’ ReportRecommendation and Order (Dkt. No. 64) is ADOPTED in its entirety; and
it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No.
60) is GRANTED; and it is further
ORDERED that Mateo’s second amended complaint (Dkt. No. 39) is
DISMISSED; and it is further
ORDERED that the Clerk 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.
September 30, 2013
Albany, New York
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