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Tony Mcgee v. Ms. West

September 21, 2011

TONY MCGEE, PLAINTIFF,
v.
MS. WEST, CORRESPONDENCE OFFICE, AND MS. D. CASEY, CORRESPONDENCE EMPLOYEE, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Plaintiff's objections to Magistrate Judge Lowe's August 31, 2011 Report-Recommendation and Order recommending that the Court grant Defendants' motion to dismiss, but, in light of Plaintiff's pro se status, permit him an opportunity to file a third amended complaint.

II. BACKGROUND

In his Second Amended Complaint filed on January 13, 2011, Plaintiff alleges that four incidents occurred while he was incarcerated at the Great Meadow Correctional Facility ("Great Meadow"), which led to theft of his personal property and which violated his First Amendment rights. See Dkt. No. 25. First, Plaintiff alleges that in May of 2009, he requested a clothing catalog from a company called "Bust the Move."*fn1 See id. at 5. Plaintiff claims, however, that he never received the catalog he initially ordered but he received a "new catalog in July of 2009. See id. Plaintiff appears to claim that the initial catalog he requested was wrongfully destroyed. See id.

Next, on May 11, 2009, Plaintiff claims that he sent a request to North Carolina for his birth certificate, along with a $15.00 fee. See id. at 4, 5. Plaintiff asserts that he never received his birth certificate and alleges that he later found out that Defendant Casey wrongfully took it out of the facility. See id.

Thereafter, on November 27, 2009, Plaintiff claims that he sent an item marked "legal mail" to a lawyer in Brooklyn. See id. at 5. Plaintiff asserts that Defendant West "steamed . . . open" the envelope and destroyed its contents. See id.

Finally, on October 21, 2010, Plaintiff claims that he received a "medicare catalog." See id. The next day, he sent a "certified mail" response to medicare marked "legal mail." See id. Plaintiff asserts that Defendant West "ripped open" this letter and then put it in a new envelope with a new certified mail receipt. See id. at 4-5. Plaintiff claims that this conduct constituted "criminal tampering." See id. at 5.

On February 2, 2011, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 27. Defendants asserted that the Court should dismiss the action because (1) Plaintiff failed to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act ("PLRA"), and (2) Plaintiff fails to failed to present claims upon which relief may be granted. See Dkt. No. 27-1 at 5-7.

On August 31, 2011, Magistrate Judge Lowe issued a Report-Recommendation and Order recommending that the Court grant Defendants' motion, but also permit Plaintiff an opportunity to file a third amended complaint. See Dkt. No. 40. Specifically, applying the three factors set forth in Hemphill v. State of New York, 380 F.3d 680 (2d Cir. 2004), Magistrate Judge Lowe recommended that the Court find that Plaintiff failed to exhaust his administrative remedies. See id. at 7-8. Magistrate Judge Lowe found that (1) an administrative remedy was available to Plaintiff; (2) Defendants did not forfeit this affirmative defense by failing to raise it in their answer or pre-answer motion to dismiss; and (3) Plaintiff failed to establish special circumstances that caused his failure to comply with the grievance procedures. See id.

On September 6, 2011, Plaintiff filed objections to Magistrate Judge Lowe's August 31, 2011 Report-Recommendation and Order. See Dkt. No. 41. In his objections, Plaintiff argues that he exhausted his administrative remedies because, once his grievance was denied as "untimely," he was no longer able to pursue the grievance. See id. at 1. Plaintiff also seems to indicate that he was seeking advice from an attorney in Brooklyn regarding whether he should pursue a deliberate indifference claim because the "medical clinic" would not permit him to see a doctor for an unspecified ailment. See id. Plaintiff claims that his time to file his grievance expired while he was waiting for an answer from this Brooklyn attorney. See id. at 2.

In his second objection, Plaintiff again asserts that he sustained a monetary loss of $15.00 and the theft of his personal property when Defendant Casey "intercepted" the birth certificate he requested and failed to place the item into his personal property bin. See id. In his third objection, Plaintiff again repeats that he suffered an "invasion of privacy and identity theft" when his certified legal mail was opened and read. See id. at 3. He then indicates that the mail was placed into a different certified mail envelope and mailed. See id.*fn2

III. DISCUSSION

A. Review of a magistrate judge's decision

When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. ยง 636(b)(1). However, when a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate ...


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