The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
In his amended complaint, which he filed on August 27, 2003, see Dkt. No. 18, Plaintiff alleges violations of the Eighth Amendment guarantee against cruel and unusual punishment because Defendants Fresn and Marlow failed to protect him from a sexual assault by his cell mate and because, subsequently, Defendants Ferrari, Fresn, Kluwe, and McKenzie failed to provide him with adequate medical assistance. Plaintiff also contends that Defendant Mader assaulted him by striking him in the head, neck, back, and lower abdomen and that Defendant Stoltenberg discriminated against him by using harassing language, which embarrassed and humiliated him.
In addition, Plaintiff alleges that Defendants Goord, Wright, LeClaire, Knapp-David, and Van Buren violated his First Amendment rights by retaliating against him for filing complaints and grievances. Plaintiff also asserts that Defendant Mader deprived him of his "copy card" and "legal article" in violation of his due process rights and that Defendant Iritz violated his due process rights when he placed him in "administrative segregation" for thirty days. Finally, Plaintiff claims that Defendants violated his rights under the Americans with Disabilities Act ("ADA") by transferring him to another facility that could not accommodate his disability.
On December 10, 2004, Defendants Goord, Wright, LeClaire, Knapp-David, Van Buren, Iritz, Ferrari, and Stoltenberg filed a motion for summary judgment on the ground that Plaintiff's complaint lacked merit. See Dkt. No. 59. In addition, on August 10, 2005, Defendants Mader and Fresn filed a motion to dismiss for failure to timely effect service upon them, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. See Dkt. No. 79.
On September 19, 2005, Magistrate Judge Di Bianco issued a Report-Recommendation in which he recommended that the Court grant Defendants' motion for summary judgment and dismiss the entire complaint on its merits. See Dkt. No. 80. Alternatively, Magistrate Judge Di Bianco noted that Plaintiff failed to exhaust his administrative remedies with respect to any of the claims he asserts in his amended complaint. Magistrate Judge Di Bianco also recommended that the Court dismiss the claims against all Defendants with prejudice, except for the assault claim against Defendant Mader, which he recommended that the Court dismiss without prejudice. Finally, Magistrate Judge Di Bianco recommended that the Court deny Defendant Mader's and Fresn's motion to dismiss as moot because of his recommendation regarding the merits of Plaintiff's claims.
Currently before the Court are Plaintiff's objections to these recommendations.
1. Review of Magistrate Judge's Report-Recommendation
A district court may, upon a de novo review, accept or modify a magistrate judge's recommendations to which a party specifically objects. When neither party files an objection, the court may accept the recommendation absent a clear error. See Fed. R. Civ. P. 72(b); see also Edwards v. Fischer, 414 F. Supp. 2d. 342, 346-47 (S.D.N.Y. 2006) (noting that "where objections are 'merely perfunctory responses,' argued in an attempt to 'engage the district court in a rehashing of the same arguments set forth in the original petition,' reviewing courts should review a report and recommendation for clear error. . . . On the other hand, where objections to a report are 'specific and . . . address only those portions of the proposed findings to which the party objects,' district courts should conduct a de novo review of the issues raised by the objections." (citation omitted)).
2. Summary Judgment Standard
A court may grant a motion for summary judgment when there is no genuine issue of material fact. See Fed. R. Civ. P. 56. If the moving party meets its burden to show that there is no genuine issue of material fact, the burden shifts to the non-moving party to put forth evidence that a disputed issue of fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). When analyzing a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, and only disputes over facts that may affect the outcome of the case can preclude summary judgment. See Salahuddin v. Coughlin, 674 F. Supp. 1048, 1053 (S.D.N.Y. 1987) (quotation omitted).
B. Service of Process and Personal Jurisdiction
A plaintiff is responsible for the service of a summons and complaint upon each defendant in an action, see Fed. R. Civ. P. 4(c)(1), and has 120 days from the filing of the complaint to effect service upon all defendants, see Fed R. Civ. P. 4(m). Unless good cause is shown, the failure to serve a defendant within 120 days is grounds for the dismissal of the claims against the unserved defendant without prejudice. See id. A plaintiff, pro se and proceeding in forma pauperis, may rely upon the United States Marshals Service to effect service upon the defendants. The failure of the Marshals Service to effect service upon the defendants, through no fault of the plaintiff, constitutes good cause for an extension. See Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986) (also noting that "'incomplete or improper service will lead the court to dismiss the action unless it appears that proper service may still be obtained.'" (quotation omitted)).
Magistrate Judge Di Bianco found that the Court did not acquire personal jurisdiction over Defendants Marlow, Kluwe, and McKenzie because Plaintiff failed to effect service upon those Defendants within 120 days of the filing of the amended complaint. Magistrate Judge Di Bianco explained that the Inmate Records Coordinator at the Bare Hill Correctional Facility ("BHCF") returned the summons and complaints for these Defendants to the Marshal because these three Defendants were no longer employed at BHCF. Although Magistrate Judge Di Bianco acknowledged that a court can grant an extension of time to effect service for good cause, he noted that Plaintiff had not asked for the Court's assistance with respect to service on these Defendants, although he had asked for such assistance with respect to other Defendants. Magistrate Judge Di Bianco, therefore, found that Plaintiff had not established good cause for his failure to effect service on these Defendants and recommended that the Court dismiss the claims against these Defendants with prejudice.
Magistrate Judge Di Bianco also noted that, although Plaintiff failed to effect service upon Defendants Mader and Fresn within the required time-frame, the Court had ordered this service based upon Plaintiff's request for assistance in having the Marshal make a third attempt to serve these Defendants. Magistrate Judge Di Bianco reasoned that, because the Court had provided Plaintiff with another opportunity to serve these Defendants, he would recommend that the Court deny Defendant Mader's and Fresn's motion to dismiss the claims against them for failure to timely effect service. Nonetheless, he noted that, because he was recommending that the Court dismiss the entire complaint on its merits, he would also recommend that the Court could deny Defendants Mader's and Fresn's motion to dismiss for failure to effect service as moot. The parties do not object to this recommendation.
The Court has reviewed the entire record in this case and finds that there is nothing to indicate that Plaintiff properly served process upon Defendants Malow, Kluwe, and McKenzie. Therefore, the Court adopts Magistrate Judge Di Bianco's recommendation and grants Defendants' motion for summary judgment with regard to Plaintiff's claims against these Defendants on the ground that the Court has not acquired personal jurisdiction over them. Additionally, the Court adopts Magistrate Judge Di Bianco's recommendation and denies Defendants Mader's and Fresn's motion to dismiss for untimely service because, based upon the fact that Plaintiff sought the Court's assistance with service and, as a result, service was eventually effected on these Defendants, Plaintiff has shown cause for the untimely service of his summons and complaint on these Defendants.
C. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act ("PLRA") provides that "[n]o 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." 42 U.S.C. § 1997e(a). The Second Circuit clarified this language on August 18, 2004, when it decided five cases addressing the PLRA's exhaustion requirement. See Giano v. Goord, 380 F.3d 670 (2d Cir. 2004); Hemphill v. State of N.Y., 380 F.3d 680 (2d Cir. 2004); Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004); Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004). In each of these cases, the Second Circuit made clear that the exhaustion requirement is an affirmative defense, not a jurisdictional requirement. Accordingly, Defendants may be estopped from raising the non-exhaustion defense if "special circumstances" exist that would justify Plaintiff's failure to exhaust his administrative remedies. See Giano, 380 F.3d at 675. Special circumstances include threats from prison officials and the discussion of a prisoner complaint during a disciplinary hearing. See id. (citation omitted).
Magistrate Judge Di Bianco found that Plaintiff had not exhausted his administrative remedies with respect to any claim he asserted in his amended complaint. He explained that, instead of filing grievances with the Inmate Grievance Resolution Committee ("IGRC") as Section 139 of New York Correction Law requires, Plaintiff wrote many "letters" to supervisory officials. Magistrate Judge Di Bianco also noted that, even if the Court viewed these letters as grievances, Plaintiff never appealed the responses to these letters to the Central Office Review Committee ("CORC") as Section 139 requires. Nonetheless, Magistrate Judge Di Bianco decided that, because Plaintiff's claims ultimately failed on the merits, there was no need for him to address the issue of whether there were special circumstances that justified Plaintiff's failure to exhaust his administrative remedies.
Although not entirely clear, it appears that Plaintiff objects to Magistrate Judge Di Bianco's findings on the ground that he did exhaust his administrative remedies. However, he does not provide any specifics to refute the documents that Defendants submitted regarding this issue. Rather, he merely refers to an "Albany official" and states that "they are not entitle [sic] to summary judgment." See Plaintiff's Objections at 1.
Despite this objection, the evidence in the record indicates that Plaintiff never attempted to file a grievance with IGRC with regard to the claims in his complaint, even though, in the past, Plaintiff had properly filed grievances concerning other complaints and was familiar with the grievance procedure. Moreover, even if the Court were to construe Plaintiff's letters to supervisory officials as grievances, there is no evidence that Plaintiff ever appealed any adverse response to those letters to CORC. Accordingly, the Court adopts Magistrate Judge ...