Weller v. Dykeman

Filing 43

OPINION AND ORDER ADOPTING IN PART 42 REPORT AND RECOMMENDATION granting 36 Motion for Summary Judgment. This case shall be dismissed in the event Plaintiff does not seek leave to amend his complaint within thirty (30) days of this Opinion and Order. Signed by Chief Judge Christina Reiss on 11/6/2012. (pac)

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DISTRICT !if VF;;;
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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

2012

BY

SCOTT WELLER,
Plaintiff,

v.
STEVE DYKEMAN,

NOV -7 AM f: 42
CLERK

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OH'UTY C~-:-;- ­

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Case No. 5:10-cv-181

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Defendant.

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OPINION AND ORDER ADOPTING IN PART MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION

(Docs. 36, 42)
This matter came before the court for a review of the Magistrate Judge John
Conroy's October 10,2012 Report and Recommendation (the "R & R") in regards to a
motion for summary judgment filed by the Defendant Steve Dykeman. Defendant, who
is an official at the Northern State Correctional Facility, has moved for summary
judgment on two grounds. First, Defendant contends Plaintiff Scott Weller failed to
exhaust his administrative remedies as required by the Prison Litigation Reform Act of
1995 ("PLRA"). See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted."). In the alternative, Defendant contends
summary judgment in Defendant's favor is appropriate because Plaintiff fails to allege a
constitutional violation because Defendant took no intentional, deliberate steps to hinder
Plaintiffs pursuit of his cause of action in small claims court. Plaintiff did not oppose
the motion for summary judgment. Neither party has objected to the R & R, and the
deadline for doing so has expired.

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A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 FJd 401, 405 (2d Cir.
1999). The district judge 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); accord

Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual
or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). When no timely objection is filed, the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation. See

Campbell v. United States Dist. Court, 501 F.2d 196,206 (9th Cir. 1974), cert. denied,
419 U.S. 879 (1974).
In his eighteen page R & R, the Magistrate Judge carefully reviewed the factual
record and the motion before the court. He recommended that Defendant's motion for
summary judgment be granted on the grounds that Plaintiff has failed to exhaust his
administrative remedies as required by the PLRA in accordance with DOC's grievance
procedure deadlines and no special circumstances are alleged that would excuse his
noncompliance. The Magistrate Judge recommended denying the motion on Defendant's
alternative ground, that no constitutional violation occurred, because Defendant failed to
establish the absence of a genuine issue of material fact with regard to that claim.
The Magistrate Judge further recommended that Plaintiff affirmatively be granted
the opportunity to amend his complaint. Because Plaintiff neither opposed the motion for
summary judgment, nor objected to the Magistrate Judge's recommendation that
dismissal be granted, leave to amend may be premature, unnecessary, and unwarranted.
Accordingly, the court does not grant leave to amend sua sponte, but stays dismissal of
this case for thirty (30) days from the date of this Opinion and Order during which time
Plaintiff may petition for leave to amend his complaint should he desire to do so. In the
event Plaintiff seeks to amend his complaint, he must submit a copy of his proposed
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amended complaint with his motion and explain to the court why leave to amend should
be granted.
For the foregoing reasons, the court hereby ADOPTS IN PART the Magistrate
Judge's R & R (Doc. 42) as the court's Opinion and Order. The court also GRANTS
Defendant's motion for summary judgment. (Doc. 36.) This case shall be dismissed in
the event Plaintiff does not seek leave to amend his complaint within thirty (30) days of
this Opinion and Order.
SO ORDERED.

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Dated at Rutland, in the District of Vermont, this ~ day of November, 2012.

Christina Reiss, Chief Judge
United States District Court

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