Cohen v. Welch et al

Filing 45

ORDER: ORDERS that Magistrate Judge Dancks' July 11, 2017 Order and Report-Recommendation, see Dkt. No. 43 , is ACCEPTED in its entirety for the reasons stated therein. ORDERS that Defendants' motion to dismiss Plaintiff's complaint, see Dkt. No. 26 , is GRANTED. ORDERS that Plaintiff's amended complaint, see Dkt. No. 23 , is DISMISSED without prejudice for failure to exhaust administrative remedies. Signed by Senior Judge Frederick J. Scullin, Jr on 8/2/17. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
MATTHTHIUS COHEN,
Plaintiff,
v.

9:16-CV-593
(FJS/TWD)

CO M. WELCH, Correctional Officer, Upstate
Correctional Facility; DARRIN CORRIGEUX,
Correctional Officer, Upstate Correctional
Facility, formerly known as D. Corrigway; and
SGT. VESNESKI, Upstate Correctional
Facility,
Defendants.
________________________________________________
APPEARANCES

OF COUNSEL

MATTHTHIUS COHEN
15-A-4146
Clinton Correctional Facility
P.O. Box 2000
Dannemora, New York 12929
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

RYAN W. HICKEY, AAG

SCULLIN, Senior Judge
ORDER
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision ("DOCCS"), brought this action pursuant to 42 U.S.C. § 1983, alleging
that, on May 13, 2016, Defendants subjected him to excessive force and failed to intervene in

violation of his Eighth Amendment rights. See generally Dkt. No. 23. Defendants filed a motion to
dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
on the ground that Plaintiff had failed to exhaust his administrative remedies. See Dkt. No. 26.
Plaintiff opposed Defendants' motion. See Dkt. Nos. 29, 35.
This Court referred the motion to Magistrate Judge Dancks for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In an Order and ReportRecommendation dated July 11, 2017, Magistrate Judge Dancks recommended that this Court grant
Defendants' motion and dismiss Plaintiff's amended complaint without prejudice for failure to
exhaust administrative remedies. See Dkt. No. 43 at 14. Plaintiff filed objections to those
recommendations. See Dkt. No. 44.
After reviewing a magistrate judge's recommendations, the district court may accept, reject
or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court reviews de novo those
portions of the magistrate judge's recommendations to which a party objects. See Pizzaro v.
Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). "'"If, however, the party makes only conclusory or
general objections, . . . the Court reviews the Report and Recommendation only for clear error."'"
Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 179741, *1 (N.D.N.Y. June 23, 2009) (quoting
[Farid v. Bouey, 554 F. Supp. 2d 301] at 306 [(N.D.N.Y. 2008)] (quoting McAllan v. Von Essen,
517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007))).
Plaintiff continues to complain that Defendants used excessive force against him on May 13,
2016, and, in addition, asserts that he has been denied medical attention and suffers physically and
mentally from cruel and unusual punishment. See generally Dkt. No. 44. Plaintiff also notes that,
"[b]efore the incident of May 13, 2016, [he] wrote ample grievences [sic] to Albany as well as hand
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written letters to Commissions [sic] office as well as had [his] wife whom is herrassed [sic] as well
submit letters and complaints in fear of [his] life . . . ." See id. at 1-2. Finally, Plaintiff included a
document entitled "Inmate Disciplinary History" as part of his objections, see id. at 3; however,
none of the incidents listed on that document occurred on May 13, 2016, which is the only incident
that is the subject of this lawsuit.
Despite the general and conclusory nature of Plaintiff's objections to Magistrate Judge
Dancks' recommendations, the Court has conducted a de novo review of the record; and, having
completed that review, the Court concludes that Plaintiff has clearly not exhausted his
administrative remedies with regard to the May 13, 2016 incident. Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' July 11, 2017 Order and Report-Recommendation,
see Dkt. No. 43, is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss Plaintiff's complaint, see Dkt. No. 26, is
GRANTED; and the Court further
ORDERS that Plaintiff's amended complaint, see Dkt. No. 23, is DISMISSED without
prejudice for failure to exhaust administrative remedies; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: August 2, 2017
Syracuse, New York

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