Keitt v. John/Jane Doe #4 et al

Filing 195

DECISION AND ORDER granting 154 Motion for Summary Judgment; adopting Report and Recommendations in its entirety re 185 Report and Recommendations. The Clerk of the Court is directed to close this case.) Signed by Hon. Michael A. Telesca on 5/5/17. (Copy of Decision and Order sent by first class mail to Plaintiff.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEVIN KEITT,
11-CV-855-MAT
DECISION AND ORDER

Plaintiff,
-vsNYS DEPARTMENT OF CORRECTIONS
AND COMMUNITY SUPERVISION,
et al.,
Defendants.

I.

Introduction
Pro se plaintiff Devin Keitt (“plaintiff”), an inmate in the

custody of

the

New

York

State

Department

of

Corrections

and

Community Services (“DOCCS”) alleges that while incarcerated at the
Elmira Correctional Facility (“Elmira”) between October 2009 and
July 2010, he was not accommodated as required by the Americans
with Disabilities Act (the “ADA”) and the Rehabilitation Act (the
“RA”), and that he was denied due process and was retaliated
against.

On January 4, 2017, United States Magistrate Judge

Michael J. Roemer issued a Report and Recommendation (“R&R”)
(Docket

No.

185)

recommending

that

the

remaining

defendants’

summary judgment motion (Docket No. 154) be granted and the amended
complaint be dismissed.
For the reason discussed below, the Court finds no error in
Judge Roemer’s R&R, and therefore adopts it in its entirety.

II.

Discussion
A.

Standard of Review

When specific objections are made to a magistrate judge’s
report and recommendation, the district judge makes a “de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C).

When only general objections are made to a

magistrate judge’s report and recommendation, the district judge
reviews it for clear error or manifest injustice. E.g., Brown v.
Peters, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997), aff’d,
175 F.3d 1007 (2d Cir. 1999).

After conducting the appropriate

review, the district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C).
Here, the Court has conducted a thorough review of the record,
the R&R, plaintiff’s objections, and the relevant legal authority
and finds no clear error or manifest injustice.
B.

Plaintiff’s Objections

Plaintiff objects to Judge Roemer’s conclusions in the R&R
that: (1) plaintiff failed to exhaust his administrative remedies;
(2) plaintiff is collaterally estopped from claiming his dyslexia
is a disability as defined in the ADA and the RA; (3) no reasonable
fact-finder

could

conclude

that

plaintiff’s

dyslexia

is

a

disability as defined in the ADA and the RA; (4) no reasonable
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juror could conclude that plaintiff was provided with no education
at all or an education that was wholly unsuited to the goals of
socialization and rehabilitation; and (5) plaintiff has failed to
produce evidence supporting a retaliation claim against defendants
D. Fusco (“Fusco”), Brian Fischer (“Fischer”), and Mark Bradt
(“Bradt”).

Because plaintiff’s objections merely reiterate the

arguments that were fully briefed in his original motion papers,
the Court reviews the R&R for clear error.
C.

Plaintiff Failed to Exhaust his Administrative Remedies

Judge Roemer correctly found that all of plaintiff’s claims
were subject to dismissal because plaintiff failed to exhaust his
administrative remedies as required by the Prison Litigation Reform
Act (the “PLRA”). Pursuant to the PLRA, an inmate may not commence
an action in federal court unless he has fully exhausted his
available administrative remedies.

As Judge Roemer set forth in

the R&R, plaintiff failed to exhaust before filing this action.
Moreover, it is well-established that “[s]ubsequent exhaustion
after suit is filed . . . is insufficient.”
F.3d 116, 122 (2d Cir. 2001).

Neal v. Goord, 267

The Court therefore finds no error

in Judge Roemer’s conclusion that plaintiff’s claims are barred by
the exhaustion requirement of the PLRA.
D.

Plaintiff Cannot Establish a Disability

With respect to plaintiff’s claims under the ADA and the RA,
Judge

Roemer

concluded

that

summary

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judgment

was

appropriate

because (1) plaintiff is collaterally estopped from arguing that
his dyslexia constitutes a disability within the meaning of the ADA
and RA and (2) no reasonable fact-finder could conclude that
plaintiff is disabled.

Again, the Court finds no error in these

conclusions.
As discussed in detail in the R&R, in an action entitled Keith
v. Annetts, No. 10-CV-157, the United States District Court for the
Northern District of New York determined as a matter of law that
plaintiff’s dyslexia is not a disability as that term is defined in
the ADA.

Plaintiff appealed that determination to the Second

Circuit, which dismissed the appeal as lacking an arguable basis in
law or fact.

Plaintiff has failed to adduce any evidence showing

that he was denied a full and fair opportunity to litigate this
issue, and he is therefore estopped from reopening it before this
Court.

Moreover, and as Judge Roemer set forth in the R&R, even

were plaintiff not estopped, he has produced no evidence from which
a fact-finder could conclude that his dyslexia substantially limits
any of his major life activities.

The record demonstrates that

plaintiff is able to read proficiently.

Judge Roemer did not err

in concluding that, on this record, no reasonable juror could
determine that plaintiff suffered from a disability as that term is
defined in the ADA and the RA.

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E.

Plaintiff’s Section 1983 Claims are Subject to Dismissal

Finally,

the

Court

finds

no

error

in

Judge

Roemer’s

determination that defendants are entitled to summary judgment on
plaintiff’s Section 1983 claims.
process claim,

this

claim

can

With respect to plaintiff’s due
survive

only

if

plaintiff was

provided with “no education at all or education that was wholly
unsuited to the goals of . . . socialization and rehabilitation.”
Clarkson v. Coughlin, 898 F. Supp. 1019, 1041 (S.D.N.Y. 1995).

In

this case, the record shows that Elmira provided plaintiff with a
one-on-one tutor and a teaching assistant, and that plaintiff was
offered and refused a peer tutor.

Additionally, it was plaintiff

who dropped out of both the classroom and cell study programs. The
Court agrees with Judge Roemer that under these circumstances, no
reasonable juror could find that plaintiff was deprived of due
process with respect to provision of an education.
Regarding plaintiff’s First Amendment retaliation claims,
Judge Roemer found that Fusco’s alleged threat to issue plaintiff
a misbehavior report for failing to complete his school work did
not constitute an adverse action and that neither Fischer nor Bradt
was personally involved in any alleged retaliation.
Court finds no error in these conclusions.

Again, the

A verbal threat that

was never acted upon cannot form the basis for a retaliation claim,
and Fischer and Bradt may not be held liable for retaliation based
solely on their positions of authority.

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Having considered plaintiff’s objections, and for the reasons
set forth above, this Court finds no clear error or manifest
injustice in Judge Roemer’s findings, as a whole, and adopts the
R&R in its entirety.
III. Conclusion
For the reasons set forth in Judge Roemer’s thorough and
well-reasoned R&R, the undersigned adopts all of his conclusions.
The R&R (Docket No. 185) is hereby adopted in its entirety, and
defendants’ summary judgment motion (Docket No. 154) is granted.
The Clerk of Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
___________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

May 5, 2017
Rochester, New York

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