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Gamble v. Allen

May 6, 2009

KEVIN GAMBLE, PLAINTIFF,
v.
T. ALLEN, PRISON GUARD, DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this pro se prisoner civil rights action are Defendant's motion for summary judgment (Dkt. No. 32), and United States Magistrate Judge Gustave J. DiBianco's Report-Recommendation recommending that Defendant's motion be granted (Dkt. No. 36). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Defendant's motion is granted in its entirety.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint and In Forma Pauperis Status

On September 18, 2006, Plaintiff filed his Complaint in this action asserting an excessive force claim against T. Allen, a Prison Guard at Attica Correctional Facility ("Defendant"). (Dkt. No. 1, at 17 [Plf.'s Compl., dated Sept. 18, 2006].) Generally, in his Complaint, Plaintiff alleges that Defendant assaulted him on August 28, 2006, after his daily shower. (Id. at ¶ 6.) Plaintiff seeks monetary and punitive damages in the amount of Two Hundred Fifty Thousand ($250,000) as a result of this alleged assault. (Id. at ¶ 9.)

In his verified form Complaint, Plaintiff responded "Yes" in response to the question "Have you ever filed any other lawsuits in any state and federal court relating to your imprisonment?" (Dkt. No. 1, ¶ 5[a].) However, in response to the next question demanding a list of "any and all [such] lawsuits, currently pending or closed," Plaintiff swore that there was only one such lawsuit--Gamble v. Monette, 06-CV-0979, Complaint (N.D.N.Y. filed Aug. 11, 2006) (Scullin, J.). (Id. at ¶ 5[b].) Indeed, at the time Plaintiff made that statement, he had filed numerous other such lawsuits. (See Dkt. No. 36, at 13-16, & n.9 [citing cases].)

Along with his Complaint, Plaintiff filed a motion to proceed in forma pauperis. (Dkt. Nos. 2-3.) On October 12, 2006, Magistrate Judge DiBianco granted that motion. (Dkt. No. 4.) In so doing, Magistrate Judge DiBianco made only a passing reference to Plaintiff's prior actions in this District, apparently in reliance on Plaintiff's representation, in Paragraph 5(b)of his sworn Complaint, that his litigation history was minimal. (Id. at 1, n.1.)

B. Defendant's Motion for Summary Judgment

On June 27, 2008, Defendant filed a motion for summary judgment seeking dismissal of the Complaint in its entirety for Plaintiff's failure to exhaust administrative remedies. (Dkt. No. 32.) Defendant's motion contained an adequate notice to Plaintiff of the consequences of failing to oppose the motion. (Dkt. No. 32, Part 2.) Despite having received this notice, Plaintiff did not submit a response to Defendant's motion. (See generally Docket Sheet.)

C. Magistrate Judge DiBianco's Report-Recommendation

On March 23, 2009, Magistrate Judge DiBianco issued a Report-Recommendation recommending that Defendant's motion be granted and that Plaintiff's Complaint be dismissed in its entirety due to Plaintiff's failure to exhaust his available administrative remedies before filing suit. (Dkt. No. 36.) Magistrate Judge DiBianco further recommended that, in the event that the Court finds that a question of fact exists as to whether Plaintiff exhausted his available administrative remedies before filing suit, Plaintiff's in forma pauperis status be revoked pursuant to 28 U.S.C. Section 1915(g), as having been improvidently granted. (Id.) Familiarity with the grounds of Magistrate Judge DiBianco's Report-Recommendation is assumed in this Decision and Order, and only those facts necessary to the discussion will be set forth herein.

On April 17, 2009, Plaintiff submitted his Objection to the Report-Recommendation. (Dkt. No. 38.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review on Objection from ...


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