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McGee v. Haigh

United States District Court, N.D. New York

March 30, 2015

TONY McGEE, Plaintiff,
v.
C.O. HAIGH, et al., Defendants.

TONY MCGEE, 08-A-6251, Great Meadow Correctional Facility, Comstock, New York, Plaintiff pro se.

KEVIN M. HAYDEN, ESQ., OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany, New York, Attorneys for Defendants.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pro se under 42 U.S.C. ยง 1983. See Dkt. No. 1. Upon initial review, this Court dismissed Plaintiff's claims against Defendants Drummond, McMacllean, Williams, Omans, Brow, Droit, Mays, Russell, Meaurbeau, Nickelson, Reinbeck, Wiltsie, Vasquez, and Mateo. See Dkt. No. 9. The only claims that survived initial review were Fourteenth Amendment claims against Defendants Haigh, Saltsman, Bushane, and Walsh. Id.

On June 12, 2014, Defendants filed a motion for summary judgment. See Dkt. No. 41. In his March 3, 2015 Report and Recommendation, Magistrate Judge Peebles recommended that the Court grant Defendants' motion for summary judgment. See Dkt. No. 53.

Currently before the Court are Plaintiff's objections to Magistrate Judge Peebles' Report and Recommendation. See Dkt. No. 54.

II. BACKGROUND

A. Background

For a complete recitation of the factual and procedural background, refer to Magistrate Judge Peebles' Report and Recommendation. See Dkt. No. 53 at 3-6.

B. Magistrate Judge Peebles' March 3, 2015 Report and Recommendation

In a March 3, 2015, Report and Recommendation, Magistrate Judge David E. Peebles recommended that the Court grant Defendants' motion in regard to Defendants Haigh, Saltsman, and Bushane. Id. at 22. Additionally, Magistrate Judge Peebles recommended that this Court sua sponte dismiss all claims against Defendant Walsh. Id. Specifically, Magistrate Judge Peebles recommended that Defendants' motion be granted in regard to Defendants Haigh, Saltsman, and Bushane because, although Plaintiff filed grievances against each Defendant, "none of them contain allegations of discrimination based on his sexual orientation, and thus did not squarely place prison officials on notice of his equal protection claims." Id. at 14.

As a preliminary matter, Magistrate Judge Peebles found that "plaintiff's failure to respond to the defendants' rule 7.1(a)(3) statement is the functional equivalent of his admission of the material facts contained with[in] the statement for the purposes of the instant motion." Id. at 7-8. This is due to the "court's local rules[, which] provide that any motion for summary judgment must be accompanied by a statement of material facts as to which, the moving party submits, there exists no genuine dispute." Id. at 7 (citing N.D.N.Y. L.R. 7.1(a)(3)). Magistrate Judge Peebles' then turned to the substantive issues in Defendants' motion for summary judgment.

First, Magistrate Judge Peebles found that Plaintiff's grievance "concerning the denial of meals" was not "based on his sexual orientation or discriminatory animus." Id. at 14. Further, an investigation of the grievance did "not indicate any finding of discrimination or mention plaintiff's sexual orientation." Id. at 15. Therefore, "there is no basis to conclude that plaintiff's grievance alleging denial of meals by Defendant Haigh on November 22, 2011, November 26, 2011, and December 17, 2011, placed defendants on notice of an equal protection claim or discrimination allegation." Id.

Second, Magistrate Judge Peebles found that "plaintiff's grievance concerning the denial of showers did not place defendants on notice of his equal protection claim." Id. at 17. Defendants were not on notice of the claim because: (1) "[a] careful review of the documents associated with [the denial of showers] grievance... fail[ed] to reflect any allegation of shower denials in October 2011, or any mention of defendant Saltsman being involved in the deprivations[, ]" (2) Defendant Saltsman was not interviewed as part of the grievance investigation process for denial of showers, and (3) Plaintiff "provided no witnesses or evidence to support his grievance.'" Id. at 16 (quoting Dkt. No. 41-16 at 7).

Third, the allegations in Plaintiff's June 21, 2012 grievance and the "investigations of plaintiff's grievances regarding the denial of commissary privileges do not reveal that... defendant Bushane deprived plaintiff of commissary buy-sheet[s] based on his sexual orientation" or that Plaintiff alleged the violations were because of his sexual orientation. Id. at 18. Additionally, "[n]one of the decisions issued by [prison staff]... reflect any finding of discrimination or motivation by the accused individuals of discriminatory animus." Id. at 18-19. Therefore, Magistrate Judge Peebles found that Plaintiff's grievances regarding the denial of commissary sheets did not "contain[] allegations of discrimination against plaintiff based on his sexual orientation." Id. at 18. Accordingly, Magistrate Judge Peebles found "that plaintiff failed to exhaust the available administrative remedies regarding the denial of commissary access based on his sexual orientation." Id. at 19.

Based on the above findings, Magistrate Judge Peebles found that "the record reflects that plaintiff failed to exhaust available administrative remedies before commencing this action." Id. at 19. However, "failure to exhaust... does not warrant dismissal of plaintiff's amended complaint without further inquiry." Id. at 20. The Second Circuit requires that district courts determine whether the administrative process was available to Plaintiff, whether Defendants' actions prevented the exhaustion of his remedies and warrant estoppel, or whether Plaintiff has plausibly alleged special circumstances that justify his failure to exhaust administrative remedies. Id. at 20-21; see also Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004); Macias v. Zenk, 495 F.3d 37, 41 (2d Cir. 2007). Magistrate Judge Peebles found that "plaintiff has not presented, nor has the court discerned, any basis to conclude that the [Inmate Grievance Process] was not available to him, [that] defendants should be estopped from asserting failure to exhaust, or that special circumstances exist to justify plaintiff's failure to exhaust." Dkt. No. 53 at 21-22.

Next, Magistrate Judge Peebles addressed Plaintiff's failure to serve Defendant Walsh within the applicable time frame. Id. at 21-25. Even if Plaintiff fails to serve a Defendant within the 120 day period mandated by Federal Rule of Civil Procedure 4(m), the time for service must be extended upon a showing of good cause.[1] Id. at 22-23. Although Plaintiff was relieved of the burden to personally serve Defendant Walsh due to his in forma pauperis status, he could not "stand idle upon being notified... by the U.S. Marshals Service" that efforts to serve Defendant Walsh were unsuccessful. Id. at 24; see VanDiver v. Martin, 304 F.Supp.2d 934, 938-43 (E.D. Mich. 2004). Further, the Second Circuit has held that, once an in forma pauperis plaintiff has been notified that the Marshals will not serve a defendant within the specified time period, the plaintiff must "advise the district court that she is relying on the Marshals to effect service and request a further extension of time for them to do so." Dkt. No. 53 at 25 (quoting Meilleur v. Strong, 682 F.2d 56, 63 (2d Cir. 2012)). Magistrate Judge Peebles found that Plaintiff did not serve Defendant Walsh or show good ...


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