United States District Court, N.D. New York
KIMBERLY G. FINNIGAN, ESQ., COOPER, ERVING & SAVAGE, Albany, New York, Attorneys for Plaintiff.
CATHY Y. SHEEHAN, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, Attorney for Defendants.
DECISION and ORDER
THOMAS J. MCAVOY, Senior District Judge.
Plaintiff Edwin Puga ("Puga"), an inmate currently in the custody of the New York Department of Corrections and Community Services ("DOCCS"), brought this action pro se pursuant to 42 U.S.C. § 1983 alleging defendants violated his Eighth Amendment rights by subjecting him to excessive force. Compl. (Dkt. No. 1). In answering the complaint, the defendants pled, inter alia, the affirmative defense of failure to exhaust administrative remedies. Dkt. No. 16.
On May 8, 2013, defendants filed a letter motion seeking a hearing to resolve the issue of Puga's exhaustion of administrative remedies. Dkt. No. 37. By text order dated August 16, 2013, the Court granted defendants' letter motion and referred the evidentiary hearing to the Hon. Christian F. Hummel, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c). Dkt. No. 39.
Magistrate Judge Hummel conducted an evidentiary hearing and rendered a Report-Recommendation & Order on November 4, 2013. Dkt. No. 50. At the evidentiary hearing, Puga was represented by assigned counsel. In the Report-Recommendation & Order, Magistrate Judge Hummel recommended that Puga's complaint be DISMISSED based upon the failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a). Id.
Puga did not submit objection to Magistrate Judge Hummel's recommendation within the statutory time period but did submit objections, pro se, on February 20, 2014. Dkt. No. 20. In his objections, Puga asserts that he received the Report-Recommendation & Order from his attorney and asked that she file objections and provide him a copy of the objections. Id . ¶ 14. He further asserts that he waited approximately 90 days but, because he did not receive a copy of any objections, he filed objections pro se. Id . ¶¶ 14-15.
II. STANDARD OF REVIEW
After reviewing a report and recommendation, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C).
a. Timeliness of Objections
Magistrate Judge Hummel's November 4, 2013 Report-Recommendation & Order, which Puge admits he received and reviewed, Dkt. No. 20, ¶ 13, provided:
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court "within fourteen (14) days after being served with a copy of the... recommendation." N.Y.N.D.L.R. 72.1(c) (citing 28 U.S.C. §636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette , 984 F.2d 85, 89 (2d Cir. ...