Nix v. State of New York et al

Filing 80

ORDER: The Court hereby ORDERS that Magistrate Judge Dancks' February 13, 2020 77 Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendants' motion for summary judgment, see Dkt. No. 64 , is GRANTED; and the Court further ORDERS that Plaintiff's second amended complaint, see Dkt. No. 23 , is DISMISSED with prejudice; and the Court further ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case. Signed by Senior Judge Frederick J. Scullin, Jr on 3/18/2020. (meb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
EVAN NIX,
Plaintiff,
v.

9:16-CV-828
(FJS/TWD)

CORRECTION OFFICER STEVEN
LESTER, and CORRECTION OFFICER
VICTOR NORTON,
Defendants.
______________________________________________
APPEARANCES

OF COUNSEL

LAW OFFICES OF DEVON M. RADLIN
112 West 34th Street, 18th Floor
New York, New York 10120
Attorneys for Plaintiff

DEVON M. RADLIN, ESQ.

OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

ERIK BOULE PINSONNAULT, AAG

SCULLIN, Senior Judge
ORDER
On July 7, 2016, Plaintiff, an inmate in custody of the New York State Department of Corrections
and Community Supervision (?DOCCS?), commenced this action pursuant to 42 U.S.C. § 1983 alleging
that Defendants violated his constitutional rights. See Dkt. No. 1. Plaintiff filed an amended complaint on
December 8, 2016, which the Court ordered stricken from the docket. See Dkt. Nos. 20, 26. Thereafter,
Plaintiff filed a second amended complaint with permission on January 13, 2017. See Dkt. No. 23. This
became the operative pleading. According to Plaintiff, Defendants beat him on July 7, 2013, after he was

in an altercation with another inmate. See id. Based on this event, Plaintiff raises an excessive force
and failure to protect claim against Defendants. See Dkt. Nos. 23, 56.
Defendants then moved for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure on the ground that Plaintiff had failed to exhaust his administrative remedies before
filing his complaint. See Dkt. No. 64. Plaintiff opposed the motion, and Defendants submitted a reply.
See Dkt. Nos. 73, 76. In a Report Recommendation dated February 13, 2020, Magistrate Judge Dancks
recommended that this Court grant Defendants' motion for summary judgment and dismiss Plaintiff's
second amended complaint with prejudice. See Dkt. No. 77 at 12-13. The parties did not file any
objections to those recommendations.
When a party does not object to a magistrate judge's report-recommendation, the court reviews
that report-recommendation for clear error or manifest injustice. See Linares v. Mahunik, No. 9:05CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted). After
conducting this review, "the Court may 'accept, reject, or modify, in whole or in part, the . . .
recommendations made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)(1)(C)).
The Court has reviewed Magistrate Judge Dancks' February 13, 2020 Report Recommendation
for clear error and manifest injustice; and, finding none, the Court hereby
ORDERS that Magistrate Judge Dancks' February 13, 2020 Report-Recommendation is
ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion for summary judgment, see Dkt. No. 64, is GRANTED;
and the Court further
ORDERS that Plaintiff's second amended complaint, see Dkt. No. 23, is DISMISSED with
prejudice; and the Court further
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ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this
case.

IT IS SO ORDERED.

Dated: March 18, 2020
Syracuse, New York

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