Hayes v. Fischer et al

Filing 45

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge David E. Peebles' December 27, 2013 Report and Recommendation (Dkt. No. 41 ) is ADOPTED in its entirety. ORDERED, that defendants' motion for summary judgment (Dkt. No. 30 ) is GRANTED. ORDERED, that Hayes' motion for leave to amend (Dkt. No. 26 ) is DENIED as moot. ORDERED, that Hayes' complaint (Dkt. No. 1 ) is DISMISSED. ORDERED, that the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 3/31/14. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
EARL HAYES,
Plaintiff,

9:11-cv-1271
(GLS/DEP)

v.
HERB et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Earl Hayes
Pro Se
07-A-4800
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

LAURA A. SPRAGUE
Assistant Attorney General

Gary L. Sharpe
Chief Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Earl Hayes, a New York State prison inmate,

commenced this action alleging deprivation of his civil rights pursuant to 42
U.S.C. § 1983 against defendants Brian Fischer, Kenneth Perlman,
Correction Officer Herb, Sergeant Soto, and an unidentified John Doe
defendant.1 (Compl. at 1-2, 7, Dkt. No. 1.) Pending before the court are
Hayes’ motion to amend his complaint, (Dkt. No. 26), and Herb and Soto’s
motion for summary judgment, (Dkt. No. 30). On December 27, 2013,
Magistrate Judge David E. Peebles issued a Report and Recommendation
(R&R) recommending that the motion for summary judgment be granted
because of Hayes’ failure to exhaust his administrative remedies, that
Hayes’ IFP status remain intact, and that his motion to amend the
complaint be denied as moot. (Dkt. No. 41 at 30.) Hayes filed objections
to the R&R, which are also pending before the court. (Dkt. Nos. 43, 44.)
For the following reasons, the R&R is adopted in its entirety.
II. Background
Hayes is currently an inmate under the custody of the New York
State Department of Corrections and Community Supervision (DOCCS).
(Defs.’ Statement of Material Facts (SMF) ¶ 1, Dkt. No. 30, Attach. 27.)

1

Defendants Fischer and Perlman were dismissed from this action
on January 23, 2012. (Dkt. No. 7.)
2

During the time relevant to this action, Hayes was confined in the Hale
Creek Alcohol and Substance Abuse Treatment Correctional Annex
(ASATCA). (Id. ¶ 2.) In or about October 2009, Hayes received notice that
his merit time allowance had been granted. (Compl. at 5.) In January
2010, Hayes was approved for merit parole by the Parole Board with a
release date of May 17, 2010. (Id.) In February 2010, Hayes filed a
grievance against Herb for abuse of authority. (Defs.’ SMF ¶ 12.)
On March 7, 2010, Hayes received a Tier II Misbehavior Report. (Id.
¶ 3.) On March 9, Hayes was found guilty after a Tier II Disciplinary
Hearing, resulting in an order to serve twenty days “keeplock,” removal
from the Hale Creek ASATCA program, and transfer to the Marcy
Correctional Facility Special Housing Unit (SHU). (Id. ¶¶ 4, 8; Compl. at 5.)
During this disciplinary hearing, Hayes denied the allegations against him,
but produced no witnesses or evidence on his behalf and testified that he
did not intend to file a grievance against Herb for filing the misbehavior
report. (Defs.’ SMF ¶¶ 6, 7, 9; Dkt. No. 30, Attach. 12 at 19-20.) On March
10, Hayes’ Merit Time Allowance was rescinded “because of [his]
unsatisfactory program participation and removal from the Hale Creek
ASATCA . . . program.” (Compl. at 5.)
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III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element 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 *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases 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 id. at *45.
IV. Discussion
Hayes’ complaint alleges that the Tier II Misbehavior report was
issued in retaliation for the grievance he filed against Herb in February
2010. (Compl. at 10.) Hayes claims that Soto and Herb conspired against
him and Soto directed Herb to file a fabricated misbehavior report in order
to forfeit Hayes’ merit time release and to discourage him from filing future
grievances. (Id.) Hayes also alleges that defendants conspired to deprive
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him of his equal protection rights under the Fourteenth Amendment. (Id.)
In response, defendants assert that Hayes’ claims should be
dismissed because: (1) Hayes is precluded from litigating this case without
payment of filing fees under the “three strikes” provision of 28 U.S.C.
§ 1915(g); and (2) Hayes failed to exhaust his administrative remedies.
(Dkt. No. 30, Attach. 1 at 6-8, 8-11.)2 In the R&R, Judge Peebles
recommended that Hayes’ IFP status remain intact because, out of the five
strikes defendants allege against Hayes, (Dkt. No. 30, Attach. 1 at 7-8),
only two constituted “strikes” under 28 U.S.C. § 1915(g). (Dkt. No. 41 at
21.) Additionally, Judge Peebles found that Hayes failed to exhaust his
administrative remedies, declined to reach the merits of Hayes’ claims, and
recommended that defendants’ motion for summary judgment be granted
and Hayes’ motion for leave to amend his complaint be denied as moot.
(Id. at 21-30.)
Hayes subsequently filed timely objections. (Dkt. Nos. 43, 44.)
Hayes’ objections are general in part and specific in part. First, Hayes, for
the first time, argues that letters he wrote to Superintendent Nichols and
2

Defendants presented additional arguments in their motion that
have not been reached by the court or Judge Peebles. (Dkt. No. 30,
Attach. 1 at 12-16.)
5

Deputy Melecio should be treated as grievances. (Dkt. No. 43 at 7.) Also
for the first time, Hayes has included copies of the letters. (Id. at 32-40.)
This “objection,” while specific, is insufficient to compel de novo review. As
noted, these letters were not mentioned in Hayes’ complaint, proposed
amended complaint, or opposition to defendants’ motion for summary
judgment. (Compl.; Dkt. No. 26, Attach. 1; Dkt. No. 37.) “Generally, courts
do not consider such ‘new arguments’ or ‘new evidence’ ‘raised in
objections to a magistrate judge’s report and recommendation that could
have been raised before the magistrate but were not,’” and this court
declines to do so here. Chalsani v. Daines, No. 10-CV-1978, 2011 WL
4465408, at *1 (E.D.N.Y. Sept. 26, 2011) (quoting Illis v. Artus, No. 06-civ3077, 2009 WL 2730870, at *1 (E.D.N.Y. Aug. 28, 2009)). Thus, Hayes’
objection is without merit.3 Accordingly, the R&R is adopted with respect to
Hayes’ failure to exhaust administrative remedies.
3

Despite Hayes’ failure to raise this argument in his proposed
amended complaint or his response to defendants’ summary judgment
motion, the court has reviewed the letters and finds that, even construing
them liberally, they are primarily concerned with the merits of Hayes’
charged misbehavior and the subsequent disciplinary hearing, and do not
establish that he is grieving potential retaliation by defendants. (Dkt. No.
43 at 32-40.) In fact, the letters indicate otherwise, as Hayes explicitly
states in the letters that he “decided not to file a grievance” and told others
that he “was not going to file a grievance.” (Id. at 34.)
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Second, Hayes generally objects to Judge Peebles’ recommendation
that Hayes’ failure to exhaust his administrative remedies should not be
excused due to his alleged lack of knowledge regarding the availability of
the grievance process. (Dkt. No. 43 at 2-3.) This objection repeats
arguments previously made by Hayes in response to defendants’ motion.
(Dkt. No. 37 at 2; Dkt. No. 17 at 2.) Having reviewed this recommendation
for clear error, see Almonte, 2006 WL 149049, at *3-4, and finding none,
this recommendation is adopted.
Finally, Hayes generally objects to the portion of the R&R that
recommended denying his motion to amend. (Dkt. No. 43 at 15-16.)
Judge Peebles concluded that Hayes’ motion to amend the complaint
should be denied as moot because Hayes failed to exhaust his
administrative remedies. (Dkt. No. 41 at 30.) Hayes’ proposed amended
complaint, however, contains no additional explanation of his failure to
exhaust his administrative remedies. (Dkt. No. 26, Attach. 1.) Thus,
Hayes’ motion to amend his complaint is properly denied.
As to the remainder of Hayes’ objections, the court, having carefully
reviewed the record, finds no clear error in the R&R and adopts it in its
entirety.
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V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles’ December 27,
2013 Report and Recommendation (Dkt. No. 41) is ADOPTED in its
entirety; and it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No.
30) is GRANTED; and it is further
ORDERED that Hayes’ motion for leave to amend (Dkt. No. 26) is
DENIED as moot; and it is further
ORDERED that Hayes’ complaint (Dkt. No. 1) 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.
March 31, 2014
Albany, New York

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