Nelson v. Plumley et al

Filing 90

DECISION AND ORDER: ORDERED that the Defendants' objections to the Report-Recommendation of Magistrate Judge Peebles, dkt. # 85 , are hereby OVERRULED. The Report-Recommendation, dkt. # 83 , is hereby ADOPTED, and the Court finds that t he Plaintiff's excessive force claim is not barred by the PLRA based upon Plaintiff's exhaustion of available administrative remedies before commencing suit; and the Court will set the matter down for trial by separate order. Signed by Senior Judge Thomas J. McAvoy on 7/14/15. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
JEFFREY A. NELSON,
Plaintiff,
vs.

9:12-CV-422

BRUCE PLUMLEY, et al.,
Defendants.
_______________________________________________________________________
Thomas J. McAvoy,
United States District Judge

DECISION & ORDER
This civil rights action pursuant to 42 U.S.C. § 1983 alleges violations of Plaintiff’s
constitutional rights as a New York State prison inmate. The action was referred to the
Hon. David E. Peebles, United States Magistrate Judge, for a Report-Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Af ter previous motion practice, the
Plaintiff’s remaining claim is an excessive force claim against Defendants Berggren and
Galani.
The Report-Recommendation, dated May 14, 2015, recommended that the Court
find that Plaintiff’s claims are not barred by the Prison Litigation Reform Act (“PLRA”)
based on a failure to exhaust administrative remedies, and that the matter be set down for
trial. See dkt. # 83.

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The Defendants filed timely objections to the Report-Recommendation.1 When
objections to a magistrate judge’s Report-Recommendation are lodged, the Court makes a
“de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 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 judge may also receive further
evidence or recommit the matter to the magistrate judge with instructions.” Id.
Having reviewed the record de novo and having considered the issues raised in the
Defendants’ objections, this Court has determined to accept and adopt the
recommendation of Magistrate Judge Peebles for the reasons stated in the ReportRecommendation.
It is therefore
ORDERED that the Defendants’ objections to the Report-Recommendation of
Magistrate Jude Peebles, dkt. # 85, are hereby OVERRULED. The ReportRecommendation, dkt. # 83, is hereby ADOPTED, and:
1.

The Court finds that the Plaintiff’s excessive force claim is not barred by the
PLRA based upon Plaintiff’s exhaustion of available administrative remedies
before commencing suit; and

1

Plaintiff filed a document pro se he styles as “objections” to the ReportRecommendation. In that document, however, Plaintiff asks the Court to adopt the
Report-Recommendation. See dkt. # 84. Moreover, Plaintiff was represented by counsel
at the evidentiary hearing on the failure-to-exhaust issue, and counsel filed a brief in
opposition to Defendants’ objections to the Report-Recommendaiton. See dkt. #89.
These filings make clear that Defendants’ are the only actual objections to the ReportRecommendation.
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2.

The Court will set the matter down for trial by separate order.

IT IS SO ORDERED.
Dated:July 14, 2015

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