UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
September 11, 2009
KAHENE PETERKIN, PLAINTIFF,
DR. HALKO, NA HENSON, P.A. WILLIAMS, DEFENDANT.
The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Pro se Plaintiff Kahene Peterkin ("Peterkin"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action against Defendants Dr. Halko, NA Henson, and P.A. Williams. Peterkin's Complaint alleges that while he was incarcerated at Sing Sing Correctional Facility: (1) Dr. Halko denied him medications he had received at his previous correctional facility for a variety of physical ailments, including a herniated disc, back pain, and neck pain; and (2) he was forced to sleep in a top bunk even though his physical condition entitled him to a bottom bunk, and on July 20, 2008, he fell out of his top bunk and injured himself.
On November 20, 2008, this Court referred the matter to Magistrate Judge Douglas F. Eaton for general pretrial, including dispositive motions. On January 8, 2009, Peterkin moved for the appointment of counsel. On January 22, 2009, Defendants Halko and Williams moved to dismiss Peterkin's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1
Magistrate Judge Eaton issued a Report & Recommendation ("R&R") on May 5, 2009. First, Magistrate Judge Eaton denied Peterkin's motion for the appointment of counsel on the grounds that the merits of Peterkin's claim were poor and his chances of prevailing were minimal. (R&R at 1.) Second, Magistrate Judge Eaton recommended that the Court grant Defendants' motion to dismiss because Peterkin had failed to exhaust his administrative remedies, as he was required to do under the Prison Litigation Reform Act of 1995 ("PLRA"). (Id. at 2-8.) Based upon a thorough examination of the record, Magistrate Judge Eaton determined that Peterkin never filed a grievance indicating that he was denied medication, and failed to exhaust all administrative remedies with respect to the grievance he filed concerning his bunk assignment. (Id.) Magistrate Judge Eaton provided the parties with 10 days from the date of service of the R&R in which to file objections, and advised that "[f]ailure to file objections within 10 business days will preclude appellate review." (Id. at 8.)
Neither party has filed objections.*fn2 "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). Having reviewed the record and found no clear error, the Court adopts the R&R in its entirety. Peterkin's motion to appoint counsel is DENIED. Defendants' motion to dismiss is GRANTED, and the Complaint is DISMISSED with leave to renew after Peterkin exhausts his administrative remedies. The Clerk of the Court is directed to close this matter.