Woodward v. Lytle et al

Filing 124

ORDER that Plaintiff's letter motion asking the Court to remove Judge Peebles and to hold all filings in abeyance (Dkt. No. 121 ) is DENIED; that the Report-Recommendation (Dkt. No. 123 ) is ADOPTED in its entirety and that the Complaint (Dkt. No. 1 ) is DISMISSED with prejudice. Signed by Senior Judge Norman A. Mordue on 6/19/2019. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
SHAWN WOODWARD,
Plaintiff,
v.

9:16-CV-1174 (NAM/DEP)

SCOTT LYTLE, Correctional Officer, Cape
Vincent Correctional Facility, et al.,
Defendants.
________________________________________________
Appearances:
SHAWN WOODWARD, Plaintiff Pro Se
00-A-6563
Franklin Correctional Facility
P.O. Box 10
Malone, New York 12953
Attorneys for Defendants:
Hon. Barbara D. Underwood,
Attorney General of the State of New York
Helena Lynch, Esq.,
Assistant Attorney General
The Capitol
Albany, New York 12224
Hon. Norman A. Mordue, Senior U. S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Shawn Woodward, a New York State prison inmate, brings this 42
U.S.C. § 1983 action against several individual Defendants employed by the New York State
Department of Corrections and Community Supervision, alleging civil rights claims related to
his confinement at Cape Vincent Correctional Facility. (Dkt. No. 1). On February 9, 2018,
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Defendants moved for summary judgment, on the basis that Plaintiff’s claims were barred since
he failed to exhaust the available administrative remedies prior to filing this action. (Dkt. No.
41). On September 27, 2018, the Court denied the motion, finding that an issue of fact existed
as to the availability of the inmate grievance process—which precluded dismissal on the basis of
failure to exhaust administrative remedies. (Dkt. No. 61). The Court further found that an
exhaustion hearing was necessary to resolve the issue of whether the grievance process was
unavailable to Plaintiff. (Dkt. No. 66). The Court referred the matter to United States
Magistrate Judge David E. Peebles to conduct an exhaustion hearing pursuant to Messa v.
Goord, 652 F.3d 305 (2d Cir. 2011) and for the issuance of a Report-Recommendation. (Dkt.
No. 67).
The hearing was held on April 12, 2019, at which Plaintiff chose not to testify. (Dkt. No.
113). Thereafter, on May 23, 2019, Plaintiff filed a letter motion asking the Court to remove
Judge Peebles and to hold all filings in abeyance. (Dkt. No. 121). However, Plaintiff has not
shown any rational basis for disqualification. See 28 U.S.C. § 455. Therefore, Plaintiff’s
request is denied.
On May 24, 2019, Judge Peebles issued a Report-Recommendation, recommending that
Plaintiff’s Complaint be dismissed based upon his failure to exhaust available administrative
remedies before filing suit. (Dkt. No. 123). Judge Peebles advised the parties that under 28
U.S.C. § 636(b)(1), they had fourteen days within which to file written objections to the report,
and that the failure to object to the report within fourteen days would preclude appellate review.
(Id., p. 23). That period has now expired, and no objections to the Report-Recommendation

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have been filed. 1
As no timely objections to the Report-Recommendation have been filed, the Court
reviews the Report-Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223,
228–29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment.
Having reviewed the Report-Recommendation for clear error and found none, the Court adopts it
in its entirety.
For these reasons, it is
ORDERED that Plaintiff’s letter motion asking the Court to remove Judge Peebles and
to hold all filings in abeyance (Dkt. No. 121) is DENIED; and it is further
ORDERED that the Report-Recommendation (Dkt. No. 123) is ADOPTED in its
entirety; and it is further
ORDERED that the Complaint (Dkt. No. 1) is DISMISSED with prejudice; and it is
further
ORDERED that the Clerk serve a copy of this Memorandum-Decision & Order upon the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 19, 2019
Syracuse, New York

1

Plaintiff’s request for removal of Judge Peebles from the case did not excuse him from
responding to the Report-Recommendation. Indeed, in that request, Plaintiff recognized that he
had the opportunity to file objections with the Court, (Dkt. No. 121, p. 2), but he failed to do so.
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