Curtis v. Lucia et al

Filing 38

ORDER: ORDERED that the Order and Report and Recommendation (Dkt.No. 35 ) is ADOPTED in its entirety. ORDERED that defendants motion for summary judgment (Dkt. No. 29 ) is DENIED. ORDERED that this matter be scheduled for an evidentiary hearing on the issue of exhaustion of administrative remedies before Judge Dancks. Signed by Senior Judge Gary L. Sharpe on 1/12/17. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DONALD LEE CURTIS,
Plaintiff,

9:15-cv-718
(GLS/TWD)

v.
R. BOLA et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Donal Lee Curtis
Pro se
86-A-3111
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541
FOR THE DEFENDANTS:
HON. ERIC SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, New York 12224

JUSTIN L. ENGEL
Assistant Attorney General

Gary L. Sharpe
Senior District Judge
ORDER
The above-captioned matter comes to this court following an Order
and Report and Recommendation (R&R) by Magistrate Judge Thérèse

Wiley Dancks, duly filed on November 1, 2016. (Dkt. No. 35.) Following
fourteen days from the service thereof, the Clerk has sent the file, including
any and all objections filed by the parties herein.
Defendants R. Bola and D. G. DuBrey object to the R&R on two
grounds. (Dkt. No. 36.) First, defendants contend that it was error for
Judge Dancks to excuse Curtis’ failure to comply with Local Rule of
Practice 7.1(a)(3), and, second, defendants argue that, because there was
“no evidence to support [Curtis’] claim [that his grievance appeals were
destroyed], apart from his own speculative and conclusory statements,”
summary judgment for failure to exhaust administrative remedies should be
entered in their favor.1 (Dkt. No. 36, Attach. 1 at 2-7.) While both
objections may fairly be characterized as specific, and therefore trigger de
novo review, see Almonte v. N.Y.S. Div. of Parole, No. Civ. 904CV484,
2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006), the court nonetheless
adopts the R&R for exactly the reasons expressed by Judge Dancks. (Dkt.

1

Defendants also mention that Judge Dancks failed to address its arguments
regarding Dorsey v. Ingerson, No. 9:10-CV-1030, 2014 WL 5769109 (N.D.N.Y. Nov. 5, 2014).
(Dkt. No. 36, Attach. 1 at 6-7 & n.2; Dkt. No. 29, Attach. 2 at 10-11.) Without knowing exactly
what the plaintiff argued or offered as evidence in that case, it is difficult to say whether it is
sufficiently analogous to the present matter to make any difference. More importantly, the
court concurs with Judge Dancks that the facts and circumstances surrounding Curtis’ claim
that his grievance appeals were not processed, (Dkt. No. 35 at 18-19), creates an issue of fact
best resolved at the conclusion of an evidentiary hearing.

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No. 35 at 13-15, 18-20.)
Accordingly, it is hereby
ORDERED that the Order and Report and Recommendation (Dkt.
No. 35) is ADOPTED in its entirety; and it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No.
29) is DENIED; and it is further
ORDERED that this matter be scheduled for an evidentiary hearing
on the issue of exhaustion of administrative remedies before Judge
Dancks; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties
in accordance with the court’s Local Rules.
IT IS SO ORDERED.
January 12, 2017
Albany, New York

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