This matter comes before the Court following a Report-Recommendation filed on June 12, 2012 by the Honorable Randolph F. Treece, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(d) of the Northern District of New York. Dkt. No. 67 ("Report-Rec."). After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned, including the Objections by pro se Plaintiff Aaron Tompkins ("Plaintiff"), which were filed on June 26, 2012. Dkt. No. 68 ("Objections").
On October 7, 2010,Plaintiff commenced this action pro se and in forma pauperis, seeking relief under 42 U.S.C. § 1983. Dkt. No. 1 ("Complaint"). On November 3, 2010, Plaintiff filed his Amended Complaint, stating causes of action under the Eighth Amendment against a number of correctional officers at Clinton Correctional Facility ("Defendants"). Dkt. No. 6 ("Amended Complaint"). Plaintiff specifically alleged that on or about May 3, 2009 he was involved in an altercation with Defendants, who beat and injured him. Id. at 5. The Court assumes the parties' familiarity with the facts underlying Plaintiff's claim and recounts the facts here only to the extent necessary to decide the Motions presently before the Court. For a more complete background, reference is made to Plaintiff's Statement of Undisputed Facts, submitted in accordance with Northern District of New York Local Rule 7.1, and to Defendants' Statement and Response thereto. Dkt. Nos. 58-2 ("Pl.'s Statement of Undisputed Facts") [hereinafter "Pl.'s 7.1 Statement"], 61-3 ("Defs.' Statement Pursuant to Rule 7.1(a)(3)") [hereinafter "Defs.' 7.1 Statement"].
On January 5, 2012, Plaintiff filed a Motion for summary judgment. Dkt. No. 58 ("Motion"). On February 3, 2012, Defendants responded to Plaintiff's Motion and filed a Cross-Motion for summary judgment. Dkt. No. 61 ("Cross-Motion"). Plaintiff subsequently filed a Response to the Cross-Motion. Dkt. No. 66. Presently before the Court are Plaintiff's Motion and Defendants' Cross-Motion.
"A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court is to "make 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. § 636(b). Where, however, an objecting "party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error." Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007)) (citations and quotations omitted); see alsoBrown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). The Court has considered all Objections, has reviewed the record, and has determined that the Report-Recommendation should be approved and adopted in part for the reasons stated herein. Because the Court does not adopt the recommendation to grant Defendants' Motion for summary judgment on exhaustion grounds, however, the Court must also review the other issues raised in the Motion and Cross-Motion de novo.*fn1
In his Objections, Plaintiff argues: (1) that Judge Treece erred in asserting that Plaintiff did not address Defendant's claim that Plaintiff placed an unknown object in his mouth after striking Officer Kilburn in the face; (2) that Judge Treece erred in finding that Plaintiff failed to exhaust -- or to otherwise show an exception to the requirement to exhaust -- his administrative remedies with respect to the assault allegation; and (3) that Judge Treece erred in recommending that Plaintiff's Motion for summary judgment be denied and that Defendant's Motion for summary judgment be granted and the case be dismissed. Obj. at 2.
1. Plaintiff's Denial of Concealing Unknown Object As to Plaintiff's first objection, Plaintiff focuses on Footnote 2 in the Background section of the Report-Recommendation, asserting that -- counter to Judge Treece's characterization -- Plaintiff did address the allegation that he "swallow[ed] [a] foreign object" "after the incident." Obj. at 1. Plaintiff is correct that in his rule 7.1 Statement of Facts he addressed this allegation when he "den[ied] placing anything in [his] mouth." Response at 16.*fn2 However, the identification of a minor inaccuracy in the Magistrate Judge's account of the case is not necessarily sufficient to lead the Court to reject the Report-Recommendation. Courts have the ability "to correct a clerical mistake or mistake arising whenever one is found in a judgment, order, or other part of the record." FED. R. CIV. P. 60(a). "The court at every stage of the of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." FED. R. CIV. P. 61; McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984). Here, the Court recognizes that Plaintiff did in fact address the allegation, but this error is one that neither factored into Judge Treece's recommendation nor is relevant to Plaintiffs' substantial rights. Reviewing the instant Motions de novo, the Court does not find that Plaintiff's denial in his 7.1 Statement of Facts affects the Court's analysis. Therefore, while Plaintiff's objection is noted, the error in the Report-Recommendation has no bearing on the disposition of the Motions before the Court.
Plaintiff's second stated objection is to Judge Treece's "finding that [Plainitiff] did not assert any caveat that would exclude him from proper exhaustion." Obj. at 1. Under the Prison Litigation Reform Act of 1996 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.§ 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002) (citations omitted). Satisfying the exhaustion requirement "entails both 'complet[ing] the administrative review process in accordance with the applicable procedural rules' and providing the 'level of detail necessary in a grievance to comply with the grievance procedures.'" Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006) and Jones v. Bock, 549 U.S. 199, 218 (2007)). However, a court may excuse a failure to exhaust if: (1) administrative remedies were not available to the prisoner; Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); (2) a defendant waives the defense by failing to raise or preserve it or acted in such a manner that they are estopped from raising it; Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004); Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2004); or (3) if special circumstances exist to justify the prisoner's failure to comply with the exhaustion requirement. Giano v. Goord, 380 F.3d 670 (2d Cir. 2004). In this case, there is no question but that administrative remedies were available and no suggestion of waiver or estoppel based on Defendants's conduct. Further, Judge Treece stated in his Report-Recommendation that Plaintiff had failed to assert any caveat and had therefore not argued that special circumstances applied. Report-Rec. at 9.
As in the case of his first objection, however, Plaintiff contends that the Report-Recommendation mischaracterizes Plaintiff's position and disregards his arguments. In arguing that he actually had asserted an exception to the exhaustion requirements, Plaintiff makes reference to his Response in Opposition to Defendant's Cross Motion for Summary Judgment. Resp. at 16. Specifically, Plaintiff asserts that he did not receive the decision denying his initial grievance until shortly before he was moved to Southport Correction Facility and did not have time to file an appeal at Clinton before the move. Id. Plaintiff asserts that he filed an appeal at Southport, as instructed, but he then was advised to file the appeal with Clinton directly. Id. at 17. Plaintiff did not file an appeal with Clinton directly but claims that he "rel[ied] on reasonable interpretation" of a letter from the Inmate Grievance Program, instructing him to file the appeal at "the facility." Dkt. No. 58-2 at 48. While Plaintiff was actually required to file the appeal at Clinton, Plaintiff argues that he believed that "the facility" referred to the facility -- Southport -- at which he was housed when he received the letter. Resp. at 16-18. Plaintiff claims that he did ultimately file an appeal as instructed, and when Plaintiff inquired regarding the status of his appeal in September, he was told there was no record of appeal and that -- because appeals are accepted no more ...