Nelson v. Plumley et al

Filing 61

DECISION and ORDER: ORDERED that Plaintiff's objections, dkt. # 60 , to the Report-Recommendation of Magistrate Judge Peebles, dkt. # 59 , are hereby OVERRULED; The 59 Report-Recommendation is hereby ADOPTED; The Defendants' motion for summary judgment, dkt. # 49 , is GRANTED in part and DENIED in part. The motion is GRANTED with respect to Plaintiff's Eighth Amendment conditions-of-confinement claim and Fourteenth Amendment procedural due process claim. The motion is DE NIED with leave to renew with respect to Defendants' claim that Plaintiff failed to exhaust his administrative remedies on all of his claims. An evidentiary hearing is necessary to determine whether Plaintiff exhausted his administrative remedie s with respect to his remaining excessive-force claim against Defendants Plumley and Spear. Defendants may renew their motion following this hearing; and the case is REFERRED to Magistrate Judge Peebles to conduct an evidentiary hearing on exhaustion of administrative remedies. The Magistrate Judge should also consider Plaintiff's request to have counsel appointed to represent him at that hearing. Signed by Senior Judge Thomas J. McAvoy on 9/17/14. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------JEFFREY A. NELSON,
Plaintiff,
v.

9:12-CV-422

BRUCE PLUMLEY, et al.,
Defendants.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
This pro se 42 U.S.C. § 1983 action was referred to the Hon. David E. Peebles, Jr.
United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. §
636(b). Magistrate Judge Peebles recommends that the Defendants’ motion for summary
judgment, dkt. # 49, be granted in part and that the Court conduct an ev identiary hearing to
determine whether Plaintiff’s failure to exhaust his administrative remedies on his excessiveforce claim can be excused. See dkt. # 59. Plaintiff has filed objections to the ReportRecommendation.
When objections to a magistrate judge’s Report-Recommendation are lodged, the
Court reviews the record de novo. See 28 U.S.C. § 636(b)(1). After such a review, the Court
may “accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge. The Court may also receive further evidence or recommit the matter to
the magistrate judge with instructions.” Id. Thus, the Court reviews the instant matter de
novo.

Having reviewed the record de novo and having considered the issues raised in the
Plaintiff’s objections, this Court has determined to accept and adopt in part the
recommendation of Magistrate Judge Peebles for the reasons stated in the ReportRecommendation. Therefore:
1. Plaintiff’s objections, dkt. # 60, to the Report-Recommendation of Magistrate
Judge Peebles, dkt. # 59, are hereby OVERRULED;
2. The Report-Recommendation is hereby ADOPTED;
3. The Defendants’ motion for summary judgment, dkt. # 49, is GRANTED in part
and DENIED in part. The motion is GRANTED with respect to Plaintiff’s Eighth Amendment
conditions-of-confinement claim and Fourteenth Amendment procedural due process claim.
The motion is DENIED with leave to renew with respect to Defendants’ claim that Plaintiff
failed to exhaust his administrative remedies on all of his claims. An evidentiary hearing is
necessary to determine whether Plaintiff exhausted his administrative remedies with respect
to his remaining excessive-force claim against Defendants Plumley and Spear. Defendants
may renew their motion following this hearing; and
4. The case is REFERRED to Magistrate Judge Peebles to conduct an evidentiary
hearing on exhaustion of administrative remedies. The Magistrate Judge should also
consider Plaintiff’s request to have counsel appointed to represent him at that hearing.

IT IS SO ORDERED.
Dated:

September 17, 2014

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