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Keitt v. NYS Department of Corrections and Community Supervision

United States District Court, W.D. New York

May 5, 2017

DEVIN KEITT, Plaintiff,
v.
NYS DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, et al., Defendants.

          DECISION AND ORDER

          MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Pro se plaintiff Devin Keitt (“plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Services (“DOCCS”) alleges that while incarcerated at the Elmira Correctional Facility (“Elmira”) between October 2009 and July 2010, he was not accommodated as required by the Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act (the “RA”), and that he was denied due process and was retaliated against. On January 4, 2017, United States Magistrate Judge Michael J. Roemer issued a Report and Recommendation (“R&R”) (Docket No. 185) recommending that the remaining defendants' summary judgment motion (Docket No. 154) be granted and the amended complaint be dismissed.

         For the reason discussed below, the Court finds no error in Judge Roemer's R&R, and therefore adopts it in its entirety.

         II. Discussion

         A. Standard of Review

         When specific objections are made to a magistrate judge's report and recommendation, the district judge makes 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)(1)(C). When only general objections are made to a magistrate judge's report and recommendation, the district judge reviews it for clear error or manifest injustice. E.g., Brown v. Peters, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997), aff'd, 175 F.3d 1007 (2d Cir. 1999). After conducting the appropriate review, the district court 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)(C).

         Here, the Court has conducted a thorough review of the record, the R&R, plaintiff's objections, and the relevant legal authority and finds no clear error or manifest injustice.

         B. Plaintiff's Objections

         Plaintiff objects to Judge Roemer's conclusions in the R&R that: (1) plaintiff failed to exhaust his administrative remedies; (2) plaintiff is collaterally estopped from claiming his dyslexia is a disability as defined in the ADA and the RA; (3) no reasonable fact-finder could conclude that plaintiff's dyslexia is a disability as defined in the ADA and the RA; (4) no reasonable juror could conclude that plaintiff was provided with no education at all or an education that was wholly unsuited to the goals of socialization and rehabilitation; and (5) plaintiff has failed to produce evidence supporting a retaliation claim against defendants D. Fusco (“Fusco”), Brian Fischer (“Fischer”), and Mark Bradt (“Bradt”). Because plaintiff's objections merely reiterate the arguments that were fully briefed in his original motion papers, the Court reviews the R&R for clear error.

         C. Plaintiff Failed to Exhaust his Administrative Remedies

         Judge Roemer correctly found that all of plaintiff's claims were subject to dismissal because plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (the “PLRA”). Pursuant to the PLRA, an inmate may not commence an action in federal court unless he has fully exhausted his available administrative remedies. As Judge Roemer set forth in the R&R, plaintiff failed to exhaust before filing this action. Moreover, it is well-established that “[s]ubsequent exhaustion after suit is filed . . . is insufficient.” Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). The Court therefore finds no error in Judge Roemer's conclusion that plaintiff's claims are barred by the exhaustion requirement of the PLRA.

         D. Plaintiff Cannot Establish a Disability

         With respect to plaintiff's claims under the ADA and the RA, Judge Roemer concluded that summary judgment was appropriate because (1) plaintiff is collaterally estopped from arguing that his dyslexia constitutes a disability within the meaning of the ADA and RA and (2) no reasonable fact-finder could ...


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