The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this pro se prisoner civil rights action, filed by Peter Taylor ("Plaintiff") against Correctional Officer James Thames ("Defendant"), are (1) Defendant's motion to dismiss for failure to state a claim, or, in the alternative, motion for summary judgment (Dkt. No. 23),*fn1 and (2) United States Magistrate Judge David R. Homer's Report- Recommendation recommending that Defendant's motion be granted and that Plaintiff's Complaint be dismissed in its entirety (Dkt. No. 25). For the reasons set forth below, the Report-Recommendation is accepted; and Defendants' motion to dismiss for failure to state a claim, or, in the alternative, for summary judgment, is granted.
Plaintiff filed his Complaint on January 20, 2009. (Dkt. No. 1.) Generally, in his verified Complaint, Plaintiff alleges that, on September 25, 2008, while Plaintiff was incarcerated at Ray Brook Federal Correction Institution, Defendant recklessly failed to prevent Plaintiff from being assaulted by another inmate, named Clay, in the following manner: (1) Defendant left unlocked a back door between Unit "Genesee A" and Unit "Genesee B" so that he could supervise 200 inmates in both units without the assistance of another correctional officer, despite the fact that he had "constructive knowledge" that this method of supervising the inmates posed a risk of harm to Plaintiff; and (2) Defendant "watch[ed]" Inmate Clay assault Plaintiff in Plaintiff's cell, before other correctional officers intervened and stopped the assault. (Id. at ¶¶ 10-19.) Based on these allegations, Plaintiff asserts against Defendant a claim of failing to intervene and protect him against an inmate's use of force, under the Eighth Amendment. (Id. at ¶ 18.) For a more detailed recitation of the factual allegations giving rise to this claim, the Court refers the reader to the Complaint in its entirety, and to the summaries of that Complaint set forth in the undersigned's Decision and Order of March 11, 2009, and Magistrate Judge Homer's Report-Recommendation of July 22, 2010. (Id. at ¶¶ 10-19; Dkt. No. 6, at 3-4; Dkt. No. 25, at 2-4.)
On September 10, 2009, Defendant filed a motion to dismiss for lack of subject-matter jurisdiction. (Dkt. No. 17.) More specifically, Defendant argued that Plaintiff's Complaint should be dismissed because, before filing his Complaint, Plaintiff failed to exhaust his available administrative remedies with regard to his claim, under the Prison Litigation Reform Act ("PLRA"). (Dkt. No. 17, Attach. 1.) In support of that argument, Defendant adduced a declaration and four exhibits. (Dkt. No. 17, Attach. 3.)
On September 25, 2009, Plaintiff filed a response in opposition to Defendant's motion. (Dkt. No. 18.) In his response, Plaintiff argued that he exhausted his available administrative remedies because (1) he filed a request for an administrative remedy (i.e., a "BP-9" Form]) on October 10, 2008, (2) that request was denied on October 21, 2008, (3) he filed a regional appeal from the denial of that request (i.e., a "BP-10" Form) on November 5, 2008, (4) that regional appeal was subsequently denied, and (5) on or about December 10, 2008, while he was in a special housing unit ("SHU"), Plaintiff sent a written request to a correction counselor named Snyder for the form necessary to file a general council appeal from the denial of his regional appeal (i.e., a "BP-11" Form), but Counselor Snyder denied the request in person on December 11, 2008. (Id. at 1-2.) In support of that argument, Plaintiff adduced a declaration. (Dkt. No. 18, a 3, 6.) In addition, the Court notes that Plaintiff attached the following exhibits to his verified Complaint: (1) his request for an administrative remedy, dated October 3, 2008; (2) the denial of that request, dated October 21, 2008; (3) two regional appeals, dated October 26, 2008, and November 2, 2008; and (4) the denial of his regional appeals, dated December 4, 2008. (Dkt. No. 1, at 6-10.)
On October 21, 2009, with permission of the Court, Defendant replaced his motion to dismiss for lack of subject-matter jurisdiction with a motion to dismiss for failure to state a claim or, alternatively, a motion for summary judgment. (Dkt. No. 23.) In his superseding motion, Defendant again argued that Plaintiff's Complaint should be dismissed in its entirety because he failed to exhaust his administrative remedies. (Dkt. No. 23, Attach. 1.) In addition, Defendant submitted a Statement of Undisputed Material Facts, a supporting declaration and exhibits, and a copy of the District's form Notification of the Consequences of Failing to Respond to a Summary Judgment Motion. (Dkt. No. 23, Attach. 4-7.)
On October 21, 2009, Plaintiff was mailed a notification that his response to Defendant's motion was due by November 16, 2009. (See Docket Entry for Oct. 21, 2009.) On October 22, 2009, he was sent a similar notice. (See Docket Entry for Oct. 22, 2009.) On January 4, 2010, out of an extension of special solicitude to Plaintiff, the Court issued an Order sua sponte extending his response deadline, to February 8, 2010. (Dkt. No. 24.) In that Order, the Court again reminded Plaintiff of the consequences of failing to respond to Defendant's motion. (Id.)
However, despite these efforts, Plaintiff chose not to respond to Defendant's motion. (See generally Docket Sheet.)
C. Magistrate Judge Homer's Report-Recommendation
On July 22, 2010, Magistrate Judge Homer issued a Report-Recommendation recommending that Defendant's alternative motion for summary judgment be granted, and that Plaintiff's Complaint be dismissed in its entirety for failure to exhaust his administrative remedies. (Dkt. No. 25.) Familiarity with the grounds of Magistrate Judge Homer's Report-Recommendation ...