Pierrot v. Piserchia et al

Filing 34

SUMMARY ORDER: ORDERED that the R&R (Dkt. No. 32 ) is ADOPTED in its entirety. ORDERED that defendants' motion to dismiss (Dkt. No. 26 ) is GRANTED. ORDERED that Pierrot's complaint (Dkt. No. 7) is DISMISSED WITHOUT PREJUDICE. ORDERED that the Clerk shall file this Summary Order in the member case Pierrot v. Sergeant Hahn, No. 9:14-cv-1536 and close the case. Signed by Judge Gary L. Sharpe on 10/27/15. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JEAN-MARIE PIERROT
Plaintiff,

9:14-cv-1535
(GLS/CFH)

v.
M. PISERCHIA et al.,
Defendants.
________________________________
SUMMARY ORDER
The above-captioned matter comes to this court following a ReportRecommendation and Order (R&R) by Magistrate Judge Christian F.
Hummel, duly filed on September 30, 2015. (Dkt. No. 32.) Following
fourteen days from the service thereof, the Clerk has sent the file, including
any and all objections filed by the parties herein.
Although plaintiff pro se Jean-Marie Pierrot filed no objections to the
R&R, he has filed a letter seeking advice about whether, after he files a
new action alleging exhaustion of his administrative remedies, he will be
required to file “a new poor person application and a second $350.00 filing
fee . . . [o]r, will the $350.00 paid towards the action . . . carry over to my
re-filing . . . ?” (Dkt. No. 33 at 1.) As for the R&R, the court has reviewed it

for clear error and found none. See Almonte v. N.Y. State Div. of Parole,
No. Civ. 904CV484GLS, 2006 WL 149049, at *6 (N.D.N.Y. Jan. 18, 2006).
For that reason, the R&R is adopted in its entirety. As for Pierrot’s letter,
exhaustion of administrative remedies subsequent to filing suit is
insufficient to meet the exhaustion requirement under the Prison Litigation
Reform Act. See Torres v. Gardner, No. 9:11-cv-466, 2012 WL 177860, at
*1 (N.D.N.Y. Jan. 23, 2012). Therefore, should Pierrot elect to file a new
action, he must again either seek in forma pauperis status or pay the filing
fee.
Accordingly, it is hereby
ORDERED that the R&R (Dkt. No. 32) is ADOPTED in its entirety;
and it is further
ORDERED that defendants’ motion to dismiss (Dkt. No. 26) is
GRANTED; and it is further
ORDERED that Pierrot’s complaint (Dkt. No. 7) is DISMISSED
WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk shall file this Summary Order in the
member case Pierrot v. Sergeant Hahn, No. 9:14-cv-1536 and close the
case; and it is further
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ORDERED that the Clerk shall close this case; and it is further
ORDERED that the clerk of the court serve a copy of this Summary
Order upon the parties.
IT IS SO ORDERED.
October 27, 2015
Albany, New York

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