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Tony Mcgee v. Ms. West

March 5, 2012

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 January 4, 2012 Report-Recommendation recommending that the Court dismiss without leave to amend Plaintiff's Third Amended Complaint.

II. BACKGROUND

A. The allegations in Plaintiff's second amended complaint

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

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

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

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

In a September 22, 2011 Memorandum-Decision and Order, the Court accepted Magistrate Judge Lowe's recommendation to dismiss Plaintiff's Second Amended Complaint and granted him leave to replead. See Dkt. No. 43. Specifically, the Court found that Plaintiff had failed to exhaust his administrative remedies and that his failure to exhaust was not excused. See id. at 6-9. Moreover, the Court found that Plaintiff had failed to state a claim for theft of personal property or for violations of the First Amendment. See id. at 10-13. Despite these findings, however, the Court granted Plaintiff leave to amend "in light of the special solicitude afforded to pro se litigants[.]" See id. at 14.

B. Plaintiff's Third Amended Complaint

Plaintiff filed his Third Amended Complaint on October 17, 2011. See Dkt. No. 44. In this complaint, Plaintiff admits that he did not exhaust his administrative remedies. See id. at 2. Plaintiff claims that he did not exhaust his administrative remedies because he is "waiting to see if the Clerk received my first amended complaint [that] was mailed on September 19, 2011." See id. at 3. Thereafter, Plaintiff complains of incidents with his mail that occurred on April 25, 2011, July 11, 2011, August 5, 2011, and about problems accessing the prison's law library. See id. at 4-5. Plaintiff's Third Amended Complaint fails to mention the 2009 and 2010 incidents discussed in the previous complaints.

C. Magistrate Judge Lowe's January 4, 2012 Report-Recommendation

In a January 4, 2012 Report-Recommendation, Magistrate Judge Lowe recommended that the Court find that (1) administrative remedies were available to Plaintiff and that Plaintiff failed to exhaust these remedies; (2) Defendants did not forfeit their exhaustion defense; and (3) Plaintiff failed to allege any special circumstances justifying his failure to comply with the administrative exhaustion requirements. See id. at 5-6. As such, Magistrate Judge Lowe recommended ...


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