Puga v. Choto et al
Filing
52
DECISION AND ORDER: Having reviewed the Report-Recommendation and Order (Dkt. No. 50 ), the Court finds that it is not subject to attack for clear error or manifest injustice. The Court accepts and adopts Magistrate Judge Hummel's recommendat ions for the reasons stated in his thorough report. Puga's complaint is DISMISSED based upon the failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a). Signed by Senior Judge Thomas J. McAvoy on 2/21/14. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------EDWIN PUGA,
Plaintiff,
v.
No. 9:11-CV-70
(TJM/CFH)
CELIA CHOTO, Correction Officer, Great Meadow
Correctional Facility; LAWRENCE PERRY,
Correction Officer, Great Meadow Correctional
Facility; RONALD LAMB, Correction Officer, Great
Meadow Correctional Facility; TIMOTHY LEMERY,
Correction Officer, Great Meadow Correctional Facility;
Defendants.
-------------------------------APPEARANCES:
OF COUNSEL:
COOPER, ERVING & SAVAGE
Attorneys for Plaintiff
39 North Pearl Street
Fourth Floor
Albany, New York 12207
KIMBERLY G. FINNIGAN, ESQ.
HON. ERIC T. SCHNEIDERMAN
Attorney General for the
State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224-0341
CATHY Y. SHEEHAN, ESQ.
Assistant Attorney General
THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
I.
INTRODUCTION
Plaintiff Edwin Puga (“Puga”), an inmate currently in the custody of the New York
Department of Corrections and Community Services (“DOCCS”), brought this action pro
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se pursuant to 42 U.S.C. § 1983 alleging defendants violated his Eighth Amendment rights
by subjecting him to excessive force. Compl. (Dkt. No. 1). In answering the complaint, the
defendants pled, inter alia, the affirmative defense of failure to exhaust administrative
remedies. Dkt. No. 16.
On May 8, 2013, defendants filed a letter motion seeking a hearing to resolve the
issue of Puga’s exhaustion of administrative remedies. Dkt. No. 37. By text order dated
August 16, 2013, the Court granted defendants’ letter motion and referred the evidentiary
hearing to the Hon. Christian F. Hummel, United States Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c). Dkt. No. 39.
Magistrate Judge Hummel conducted an evidentiary hearing and rendered a
Report-Recommendation & Order on November 4, 2013. Dkt. No. 50. At the evidentiary
hearing, Puga was represented by assigned counsel. In the Report-Recommendation &
Order, Magistrate Judge Hummel recommended that Puga’s complaint be DISMISSED
based upon the failure to comply with the exhaustion requirements of 42 U.S.C. §
1997e(a). Id.
Puga did not submit objection to Magistrate Judge Hummel’s recommendation
within the statutory time period but did submit objections, pro se, on February 20, 2014.
Dkt. No. 20. In his objections, Puga asserts that he received the Report-Recommendation
& Order from his attorney and asked that she file objections and provide him a copy of the
objections. Id.¶ 14. He further asserts that he waited approximately 90 days but, because
he did not receive a copy of any objections, he filed objections pro se. Id. ¶¶ 14-15.
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II.
STANDARD OF REVIEW
After reviewing a report and recommendation, the Court may “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C).
III.
DISCUSSION
a. Timeliness of Objections
Magistrate Judge Hummel’s November 4, 2013 Report-Recommendation & Order,
which Puge admits he received and reviewed, Dkt. No. 20, ¶ 13, provided:
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections
to the foregoing report. Such objections shall be filed with the Clerk of the
Court “within fourteen (14) days after being served with a copy of the . . .
recommendation.” N.Y.N.D.L.R. 72.1(c) (citing 28 U.S.C. §636(b)(1)(B)-(C)).
FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993); Small v. Sec’y of HHS, 892 F.2d 15 (2d Cir. 1989); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
11/04/13 Rep. Rec. & Ord., pp. 14-15 (emphasis in original).
This clear directive requires that objections were to be filed with the Clerk of the
Court by November 18, 2013.1 However, as indicated above, the objections were not filed
until February 20, 2014 - 108 days after the Report Recommendation and Order.
Because Puga’s objections were filed after the date that they were due, the issue of
whether to consider the objections is governed by Fed. R. Civ. P. 6(b)(1)(B). This
provides that a court “may, for good cause, extend the time on motion made after the time
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If the objections were to be filed by Puga himself, an incarcerated party, they would have been
accepted no later than November 23, 2013.
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has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P.
6(b)(1)(B). “Excusable neglect is an ‘elastic concept’ that ‘at bottom [is] an equitable one,
taking account of all relevant circumstances surrounding the party's omission.” Silivanch v.
Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (citations omitted). “Factors to be
considered in evaluating excusable neglect include ‘[1] the danger of prejudice to the
[non-movant], [2] the length of the delay and its potential impact on judicial proceedings,
[3] the reason for the delay, including whether it was within the reasonable control of the
movant, and [4] whether the movant acted in good faith.’” Silivanch, 333 F.3d at 366
(alteration in original) (quoting Pioneer Inv. Services Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380 (1993)). The Court places the most weight on the third factor.
See Silivanch, 333 F.3d at 366. The Second Circuit has repeatedly held that “where the
rule is entirely clear, we continue to expect that a party claiming excusable neglect will, in
the ordinary course, lose under the Pioneer test.” Silivanch, at 366-67; see also Redhead
v. Conference of Seventh-Day Adventists, 360 Fed. Appx. 232 (2d Cir. 2010); Canfield v.
Van Atta Buick/GMC Truck Inc., 127 F.3d 248, 251 (2d Cir. 1997).
Assuming, arguendo, that Puga asked his attorney to file objections, given the short
time period to file objections it was unreasonable for him to wait 90 days before he
decided to take an active part in the objection process. Simply stated, the opportunity to
file pro se objections long before they were actually filed was in the reasonable control of
Puga. By waiting 108 days to file objections knowing that objections were due within 14
days, Puga fails to establish excusable neglect.
Accordingly, Puga’s objections are deemed untimely and will not be considered.
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b. Objections
Even if the objections were considered, Puga merely reargues his case as
presented to Magistrate Judge Hummel. General or conclusory objections, or objections
which merely recite the same arguments presented to the magistrate judge, are reviewed
for clear error. Farid v. Bouey, 554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see
Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009).
III.
CONCLUSION
Having reviewed the Report-Recommendation and Order, the Court finds that it is
not subject to attack for clear error or manifest injustice. The Court accepts and adopts
Magistrate Judge Hummel's recommendations for the reasons stated in his thorough
report. Puga’s complaint is DISMISSED based upon the failure to comply with the
exhaustion requirements of 42 U.S.C. § 1997e(a).
IT IS SO ORDERED.
Dated: February 21, 2014
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