Smith v. Palmer et al

Filing 49

DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 41 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendants' Motion for Summary Judgment (Dkt. No. 32 ) is GRANTED on the ground that Smith failed to exhaust h is administrative remedies before commencing this action, and DENIED as to the merits of Smith's Eighth Amendment claim. ORDERED, that Smith's Cross-Motion for Summary Judgment (Dkt. No. 37 ) is DENIED. Signed by Senior Judge Lawrence E. Kahn on 1/27/17. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
EUGENE SMITH,
Plaintiff,
-against-

9:15-CV-0137 (LEK/TWD)

P. PALMER, et al.,
Defendants.

ORDER
I.

INTRODUCTION
This matter comes before the Court following an Order and Report-Recommendation

filed on November 3, 2016, by the Honorable Thérèse Wiley Dancks, U.S. Magistrate Judge,
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 41 (“Report-Recommendation”).
Pro se Plaintiff Eugene Smith timely filed Objections. Dkt. No. 48 (“Objections”).
II.

LEGAL STANDARD
Within fourteen days after a party has been served with a copy of a magistrate judge’s

report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and

clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b). Otherwise, a court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id.
III.

DISCUSSION
Smith’s Objections do not address the basis for Judge Dancks’s decision, see Objs.,

which is that his suit is barred because he failed to exhaust his administrative remedies,
Rep.-Rec. at 15–17. Accordingly, the Court has reviewed the Report-Recommendation for clear
error and has found none.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 41) is APPROVED and

ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ Motion for Summary Judgment (Dkt. No. 32) is
GRANTED on the ground that Smith failed to exhaust his administrative remedies before
commencing this action, and DENIED as to the merits of Smith’s Eighth Amendment claim; and
it is further
ORDERED, that Smith’s Cross-Motion for Summary Judgment (Dkt. No. 37) is
DENIED; and it is further

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ORDERED, that the Clerk of the Court serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

January 27, 2017
Albany, New York

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