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Phelan v. Swan

United States District Court, N.D. New York

February 26, 2015

KENNETH J. PHELAN, Plaintiff,
v.
SWAN, Correctional Officer, Great Meadow Correctional Facility; McDONALD, Correctional Officer, Great Meadow Correctional Facility; WARRINGTON, Correctional Officer, Great Meadow Correctional Facility; OWENS, Sergeant, Great Meadow Correctional Facility; GEBO, Correctional Officer, Great Meadow Correctional Facility; FULLER, Correctional Officer, Great Meadow Correctional Facility; KEISER, Correctional Officer, Great Meadow Correctional Facility; MURPHY, Correctional Officer, Great Meadow Correctional Facility; and HAYES, Correctional Officer, Great Meadow Correctional Facility, Defendants.

KENNETH J. PHELAN, Marcy, NY, Plaintiff Pro Se.

HONERIC T. SCHNEIDERMAN, Attorney General for the State of New York, ADRIENNE J. KERWIN, ESQ., Ass't Attorney General, Albany, NY, Attorney for Defendants.

DECISION & ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

Pro se plaintiff Kenneth J. Phelan brought this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12101, the Americans with Disabilities Act ("ADA"). On November 13, 2014, the Honorable Christian F. Hummel, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion for summary judgment be granted in part and denied in part. He recommended the motion be granted as to plaintiff's First Amendment claim against defendants Swan, Hayes, and Gebo; plaintiff's claims under the ADA; and defendants' exhaustion defense as it relates to the March 9, 2011 and March 13, 2011 cell searches, and that those claims be dismissed. He recommended the motion be denied as to plaintiff's Eighth Amendment excessive force claim against defendants Murphy, Gebo, and Keiser; defendants' exhaustion defense relating to the December 29, 2010 assault and January 21, 2011 cell search; and defendants' qualified immunity defense as it relates to the January 21, 2011 cell search. Plaintiff and defendants timely filed objections to the Report-Recommendation.

II. BACKGROUND[1]

Plaintiff alleges that on December 29, 2010, he was assaulted by defendants Owen, Keiser, Murphy, Fuller, and Gebo in violation of the Eighth Amendment. He did not file a grievance regarding this incident. He now contends administrative remedies were unavailable to him because he feared that if he filed a grievance, these defendants would cause him further physical harm. He suggests that he feared retaliatory physical assaults because of these defendants' conduct in the December 29, 2010 assault.

Phelan further contends that his cell was searched and trashed by corrections officers on January 21, 2011 (McDonald and Warrington); March 9, 2011 (McDonald and Swan); March 11, 2011[2]; and March 13, 2011 (Hayes and Gebo). Specifically, he alleges that defendants McDonald, Warrington, Swan, Hayes, and Gebo violated his rights under the First Amendment by implementing these discriminatory, harassing, and destructive cell searches in retaliation for his filing lawsuits, grievances, and/or making complaints about them and other corrections officers.

Plaintiff did not file a grievance regarding the January 21, 2011 cell search. He suggests that his failure to grieve the January 21, 2011 cell search was due to his fear that McDonald and Warrington would retaliate against him. Phelan contends that McDonald and Warrington were calling him names and threatening him before the January 21, 2011 cell search occurred. Specifically, on January 18, 2011, shortly after he complained to a sergeant about McDonald and Warrington making threats of physical violence against him and calling him names, McDonald or Warrington said to "drop the grievances or else." The alleged retaliatory cell search followed on January 21, 2011.

Phelan filed one grievance collectively contending that he was subjected to retaliatory cell searches on March 9, 11, and 13, 2011. However, he did not appeal the grievance to the Central Office Review Committee following an unfavorable determination.

III. DISCUSSION

After reviewing a magistrate judge's recommendations, the district court may accept, reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court reviews de novo those portions of the magistrate judge's recommendations to which a party objects. See Pizzaro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). "If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error." Layou v. Crews, No. 9:11-CV-0114, 2013 WL 5494062, at *1 (N.D.N.Y. Sept. 30, 2013) (Kahn, J.) (citing Chylinski v. Bank of Am., N.A., 434 F.Appx. 47, 48 (2d Cir. 2011) (summary order)). Finally, even if the parties file no objections, the court must ensure that the face of the record contains no clear error. See Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003).

In his Report-Recommendation and Order, Magistrate Judge Hummel recommended, among other things, that defendants' motion for summary judgment be denied as to plaintiff's failure to grieve and exhaust the December 29, 2010 assault. It is unclear whether Magistrate Judge Hummel recommended denial of the motion due to disputed issues of fact rendering summary judgment inappropriate in light of those facts - and thus concluding that defendants may still pursue the non-exhaustion defense but leaving the decision for a fact finder; or denied the motion as a matter of law, estopped defendants from pursuing the defense, and excused Phelan from exhausting. In support of the former, Magistrate Judge Hummel explained that Phelan presents questions of fact as to whether defendants Owens, Keiser, Murphy, Fuller, and Gebo rendered the administrative remedies unavailable to him as it relates to the December 29, 2010 assault. Report-Recommendation at 11. However, in support of the latter, Magistrate Judge Hummel noted that "a similarly-situated person of reasonable firmness would avoid grieving the December 29, 2010 assault out of fear" and "recommended that defendants Owens, Keiser, Murphy, Fuller, and Gebo be estopped from arguing exhaustion of administrative remedies as it relates to the December 29 assault." Id. at 11-12. Magistrate Judge Hummel's recommendation to deny the motion on either basis will be rejected and defendants' motion as to plaintiff's failure to exhaust the December 29, 2010 assault will be granted for the following reasons.

It is unnecessary to repeat here the well-settled precedent requiring exhaustion of a prisoner's administrative remedies pursuant to the Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996).[3] In considering whether a ...


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