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Shepherd v. Lempke

United States District Court, N.D. New York

March 30, 2017

EON SHEPHERD, Plaintiff,
v.
SUPERINTENDENT LEMPKE, et al., Defendants. Claim No. Defendant Nature of Claim Facility Amended Complaint ¶

          DECISION & ORDER

          THOMAS J. McAVOY, Senior United States District Judge

         I. INTRODUCTION

         This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. David E. Peebles, Chief United States Magistrate Judge, for the purpose of holding an evidentiary hearing and issuing a report and recommendation addressing exhaustion of administrative remedies. In his October 28, 2016 Report and Recommendation, Dkt. No. 252, Magistrate Judge Peebles provides a thorough review of the numerous claims in this matter that are based on events occurring between April 2008 and November 2010 at five separate prison facilities operated by the New York State Department of Corrections and Community Supervision ("DOCCS"), [1] and of the procedural history of this case.[2] Magistrate Judge Peebles also placed the claims potentially implicated by defendants' exhaustion defense, together with the circumstances surrounding plaintiff's efforts to exhaust available administrative remedies, into four groupings, “each of which includes common circumstances insofar as exhaustion is concerned.” Rep. Rec. p. 13.

         Based upon the evidence adduced at the hearing, Magistrate Judge Peebles recommends:

         (1) The following claims should be deemed exhausted and remain pending for trial:

Claim No.
Defendant
Nature of Claim
Facility
Amended Complaint ¶
3
Artus
Medical Indifference
Clinton
31, 104-05, 108-09
4
Artus
Religious Interference
Clinton
31, 104-05, 108-09
13
Carlee
Retaliation
Five Points
18
15
Cioffa
Excessive Force
Five Points
19, 20
16
Colvin
Excessive Force
Upstate
86, 105, 108
17
Colvin
Religious
Upstate
86, 105, 108
18
Colvin
Retaliation
Upstate
86, 105, 108
19
Cunningham
Due Process
Green
107
20
Evans
Excessive Force
Five Points
20
23
Jones
Failure to Protect
Five Points
21
26
Lempke
Excessive Force
Upstate
86, 105, 108
27
Lempke
Religious
Upstate
86, 105, 108
28
Lempke
Retaliation
Upstate
86, 105, 108-09
32
Prebalick
Retaliation
Five Points
19-22
34
Prebalick
Excessive Force
Five Points
35
35
Ramus
Due Process
Five Points
107

         (2) The following claims proceed to trial based on the parties' failure to address them in connection with defendants' exhaustion defense:

Defendant

Cause of Action

Prison Facility

Amatucci

Medical Indifference

Downstate

Barber

Failure to Protect

Five Points

N. Bezio

Due Process

DOCCS Hq.

Cambria

Excessive Force

Unknown

Chesbrough

Retaliation

Upstate

Holmes

Retaliation

Upstate

Rock

Religious Interference

Upstate

Lashway (formerly sued as Hawthorne)

Medical Indifference

Clinton

         (3) The following claims should be dismissed based upon plaintiff's representation that they are not being asserted in this action:

Claim No.

Defendant

Nature of Claim

Facility

Amended Complaint ¶

10

Bower

Failure to Protect

Five Points

15

11

Bower

Retaliation

Five Points

15

1

Evans

Religious Interfer.

Five Points

         (4) The following claims should be dismissed based upon the fact that complete exhaustion occurred only after this action was filed:

Claim No.

Name

Nature of Claim

Facility

Amended Complaint ¶

6

Belsio

Religious Interference

Upstate

41, 42

8

Atkinson

Retaliation

Upstate

90, 91

25

Lashway

Medical Indifference

Clinton

75, 76

31

Prebalick

Religious Interference

Five Points

35

36

Rowe

Failure to Protect

Upstate

43

37

Rozwell

Excessive Force

Upstate

43

38

Rozwell

Religious Interference

Upstate

43

         (5) The following claims should be dismissed based upon plaintiff's failure to fully exhaust them:

Claim No.

Name

Nature of Claim

Facility

Amended Complaint ¶

5

Belsio

Excessive Force

Upstate

41, 42

7

Belsio

Religious Interference

Upstate

41, 42

9

Bower

Excessive Force

Five Points

15

12

Carlee

Religious Interference

Five Points

34

14

Carlee

Excessive Force

Five Points

34

22

Fairchild

Retaliation

Upstate

92

24

Jones

Medical Indifference

Five Points

87

29

Menard

Excessive Force

Clinton

28

30 33

Menard Prebalick

Religious Interference Excessive Force

Clinton Five Points

28 16

         (6) The matter should be set down for trial involving the remaining claims.

         Plaintiff filed objections through appointed counsel, Dkt. No. 253, and on a pro se basis, Dkt. No. 255; and defendants filed objections. Dkt. No. 254.

         II. STANDARD OF REVIEW

         When objections to a magistrate judge's report and recommendation are lodged, the district court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The Court must make a de novo determination to the extent that a party makes specific objections to a magistrate's findings.). General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey, 554 F.Supp.2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009). After reviewing the 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).

         III. DISCUSSION

         a. Plaintiff's Objections

         1. Post-Commencement Exhaustion

         Plaintiff objects through counsel and on a pro se basis to Magistrate Judge Peebles's conclusion that plaintiff's claims that were exhausted after the action was commenced but before an amended complaint was filed ("Group Two", Claim Nos. 6, 36, 37 and 38) are nonetheless unexhausted under the holding of Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), abrogated in part on other grounds by Porter v. Nussle, 534 U.S. 516 (2002). Plaintiff argues that although the Second Circuit stated in Neal that "exhausting administrative remedies after a complaint is filed will not save a case from dismissal, ” the Circuit's decision did not specifically address situations where, as here, a claim is exhausted after commencement but prior to the filing of an amended complaint. Pl. Obj., p. 2. The Court finds no basis to reject Magistrate Judge Peebles's conclusion in this regard.

         As Magistrate Judge Peebles explained:

It is not clear from the court's decision in Neal that the plaintiff had included new claims in his amended complaint that were not asserted in his original complaint. In his amicus curiae brief to the Second Circuit, however, the New York State Attorney General explained that the plaintiff's amended complaint included newly asserted deliberate medical indifference causes of action that were not originally pleaded. Amicus Brief, Neal v. Goord, 267 F.3d 116 (2d Cir. 2001) (No. 99-0253), 2001 WL 34121400, at *2-4. The Second Circuit affirmed the district court's dismissal of all of the plaintiff's claims, including the deliberate ...

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