LionKingzulu v. Jayne et al

Filing 83

-CLERK TO FOLLOW UP-DECISION AND ORDER adopting Magistrate Judge Jeremiah J. McCarthy's Report, Recommendation and Order 74 . Defendant's motion for summary judgment 60 is granted to the extent that it seeks dismissal for failure to exha ust administrative remedies. It is further ordered that plaintiff's motion to file an Amended Complaint 62 is denied. The Clerk of Court shall take all steps necessary to close the case. A copy of this Decision and Order has been mailed to Arkil LionKingzulu, CLINTON CORRECTIONAL FACILITY, Box 2001, Dannemora, NY 12929. SO ORDERED. Signed by Hon. Richard J. Arcara on 8/26/16. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ARKIL LIONKINGZULU
Formerly known as ARKIL JOHNSON,
Plaintiff,
DECISION AND ORDER
12-CV-845A

v.
PAUL JAYNE, Corrections Officer, et al.,

Defendants.

This case was referred to Magistrate Judge Jeremiah J. McCarthy, pursuant to
28 U.S.C. § 636(b)(1)(B). Magistrate Judge McCarthy filed a Report, Recommendation,
and Order (Dkt. No. 74), recommending that the defendants’ motion for summary
judgment (Dkt. No. 60) be granted to the extent that it seeks dismissal for failure to
exhaust administrative remedies. Magistrate Judge McCarthy also denied plaintiff’s
motion for leave to file an amended complaint. Dkt. No. 62.
Plaintiff filed objections to the Report and Recommendation. Dkt. No. 77.
Plaintiff also appealed Magistrate Judge McCarthy’s order denying plaintiff’s motion
for leave to amend. Defendants responded (Dkt. No. 79), and plaintiff filed a reply.
Dkt. No. 80.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must review de novo those
portions of the Report and Recommendation to which objections have been made.
Plaintiff’s objections are based primarily on his argument that he “originated his
grievance at Wende Correctional Facility,” but that he “never received a reply from the

Wende Grievance Committee.” Dkt. No. 77 at 11. As Magistrate Judge McCarthy
noted, however, even assuming the truth of this statement, “the fact that plaintiff’s
grievance was never acted upon is . . . insufficient to excuse his failure to fully exhaust
his administrative remedies.” Dkt. No. 74 at 10. DOCCS’ regulations provide that
grievances “not decided within the [relevant] time limits may be appealed to the next
step.” 7 N.Y.C.R.R. § 701.6(g)(2). Plaintiff points to no evidence that he appealed the
Wende Inmate Grievance Review Committee’s failure to timely act on his grievance.
And it is irrelevant, at least for exhaustion purposes, that plaintiff was transferred to
Southport Correctional Facility soon after filing his grievance at Wende. DOCCS’
regulations provide that “[a]n inmate transferred to another facility may continue an
appeal of any grievance.” Id. § 701.6(h)(1). Again, plaintiff points to no evidence that
he availed himself of this procedure.
Thus, upon de novo review, the Court adopts Magistrate Judge McCarthy’s
recommendation that the defendants’ motion for summary judgment be granted to the
extent that defendants argue that plaintiff did not exhaust his administrative remedies.
The Court therefore need not address Magistrate Judge McCarthy’s alternative
recommendation that defendants’ motion for summary judgment be denied to the
extent that it argues that plaintiff’s injuries were de minimis.
Pursuant to 28 U.S.C. § 636(b)(1)(A), the Court reviews Magistrate Judge
McCarthy’s order denying plaintiff’s motion for leave to amend to determine whether
that order was clearly erroneous or contrary to law. Upon such review, the Court
affirms Magistrate Judge McCarthy’s order. Magistrate Judge McCarthy relied on the
proper legal standard, and he acted well within his discretion in denying plaintiff’s

motion, which plaintiff filed nearly nine months after Magistrate Judge McCarthy’s
deadline for doing so.
Accordingly, for the reasons set forth in Magistrate Judge McCarthy’s Report,
Recommendation, and Order (Dkt. No. 74), as well as for the reasons set forth above,
the defendants’ motion for summary judgment is granted to the extent that it seeks
dismissal for failure to exhaust administrative remedies. Further, plaintiff’s motion for
leave to file an Amended Complaint is denied.
The Clerk of Court shall take all steps necessary to close the case.
IT IS SO ORDERED.

____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: August 26, 2016