Means v. Jolsten et al

Filing 53

ORDER adopting the 48 Report and Recommendations, granting the 42 Motion for Summary Judgment and dismissing the Complaint with prejudice. Signed by Judge Brenda K. Sannes on 7/31/2019. (Copy served on Plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANTUANE MEANS,
Plaintiff,

9:17-cv-0746 (BKS/ATB)

v.
JARED OLMSTED and JOHN BERGMAN,
Defendants.
Appearances:
Plaintiff pro se:
Antuane Means
13-A-4436
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
For Defendants:
Letitia James
Attorney General of the State of New York
David A. Rosenberg, Esq.
Assistant Attorney General
The Capitol
Albany, NY 12224
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Antuane Means, a New York State inmate, commenced this action under 42
U.S.C. § 1983 asserting claims arising out of his incarceration at Coxsackie Correctional
Facility. (Dkt. No. 1). On December 21, 2018, Defendants filed a motion for summary judgment.
(Dkt. No. 42). The motion was fully briefed, with a response filed by Plaintiff on February 4,
2019 and a reply filed by Defendants on February 11, 2019. (Dkt. Nos. 44, 47). This matter was
assigned to United States Magistrate Judge Andrew T. Baxter who, on June 3, 2019, issued a

Report and Recommendation recommending that Defendants’ motion for summary judgment be
granted and that the Complaint be dismissed with prejudice. (Dkt. No. 48). Magistrate Judge
Baxter determined that: (i) Plaintiff had failed to exhaust his administrative remedies; (ii) the
failure to exhaust was incurable because the statute of limitations expired before Plaintiff filed
this action; and (iii) as a result, the Complaint should be dismissed with prejudice. (Id.).
Magistrate Judge Baxter 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. (Dkt. No. 48, at 17–18).
On June 14, 2019, Plaintiff filed a notice of appeal from the Report and Recommendation
to the United States Court of Appeals for the Second Circuit. (Dkt. No. 49). 1 The Court issued a
text order on June 27, 2019, reminding Plaintiff that objections to the Report and
Recommendation had to be filed with this Court and, in light of Plaintiff’s pro se status,
extending the time for filing objections to July 12, 2019. Plaintiff filed an objection to the Report
and Recommendation on July 11, 2019. (Dkt. No. 52).
This Court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. 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. Findings and recommendations as to which there was no properly
preserved objection are reviewed for clear error. Id.
Here, Plaintiff objects to Magistrate Judge Baxter’s determination that Plaintiff failed to
exhaust his administrative remedies. Plaintiff, however, bases his argument on factual assertions

The Report and Recommendation is not subject to appeal, and thus the notice of appeal does not deprive this Court
of jurisdiction to consider it. See In the Matter of Wooten, No. 15-mc-1496, 2016 WL 5900150, at *1 n.1, 2016 U.S.
Dist. LEXIS 140812, at *2 n.1 (E.D.N.Y. Oct. 11, 2016).

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that are nowhere in the record. Plaintiff argues that: (1) prison officials “thwarted” his attempt to
exhaust his grievance “through machination, misrepresentation and intimidation”; (2) he “was
told that there was no record” of his grievance when he inquired about it; and (3) when he
“attempted to re-submit his Grievance he was told that his time had run out.” (Dkt. No. 52, at 1–
2). These assertions are not supported by any record evidence. (See Dkt. No. 42-5 (Plaintiff’s
deposition); see also Dkt. No. 31 (Plaintiff’s opposition to motion to dismiss); Dkt. No. 44
(Plaintiff’s opposition to motion for summary judgment)). As Magistrate Baxter noted, Plaintiff
“does not allege that any officer tampered with, or took, his grievance.” (Dkt. No. 48, at 15).
Plaintiff has consistently asserted that he put his grievance in the grievance box, (Dkt. No. 42-5,
at 53; Dkt. No. 52, at 2), and he was not confined in the SHU or transferred around the time of
his grievance. While Plaintiff argues that this case is in accord with Ross v. Blake, 136 S. Ct.
1850 (2016), and Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016), Magistrate Judge Baxter
thoroughly considered both of those cases in his Report and Recommendation and concluded
that Plaintiff was not excused from the exhaustion requirement. (See Dkt. No. 48, at 7–9, 13–
16). The Court concurs in that analysis.
Plaintiff notes that here, unlike the case of Davis v. Grant, No. 15-cv-5359, 2019 WL
498277, 2019 U.S. Dist. LEXIS 20989 (S.D.N.Y. Feb. 8, 2019), he has provided a copy of the
grievance that he claims to have filed. (Dkt. No. 52, at 2). That is insufficient here to warrant an
exception to the exhaustion requirement. Having reviewed the record de novo, the Court agrees
with Magistrate Judge Baxter’s determination that Plaintiff failed to substantiate “his conclusory
allegation that he filed a grievance with any further evidence, or even additional statements of
fact that would lead the court to find that he exhausted his remedies or that the grievance
program was ‘unavailable’ within the meaning of Ross.” (Dkt. No. 48, at 16).

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Having reviewed for clear error the portions of the Report and Recommendation to which
Plaintiff has not objected, and found none, the Court adopts the Report and Recommendation in
its entirety.
For these reasons, it is
ORDERED that the Report and Recommendation (Dkt. No. 48) is ADOPTED in its
entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 42) is
GRANTED and the Complaint is DISMISSED WITH PREJUDICE; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with
the Local Rules.
IT IS SO ORDERED.

Dated: July 31, 2019
Syracuse, New York

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