GLENN T. SUDDABY, Chief District Judge.
Currently before the Court, in this pro se prisoner civil rights action filed by Ederick Fabrizio ("Plaintiff") against the eight above-captioned employees of the New York State Department of Corrections and Community Supervision ("DOCCS" or "Defendants"), are (1) the Report-Recommendation of former-Chief United States Magistrate Judge David E. Peebles
Generally, in his Report-Recommendation, Magistrate Judge Peebles rendered the following five findings of fact and conclusions of law: (1) although Plaintiff's original Complaint was signed on February 20, 2018, it should be deemed as having been "filed" (despite the Prison Mailbox Rule) on March 19, 2018, because of the evidence that, rather than hand it to a prison guard for mailing to the Court on February 20, 2018, Plaintiff mailed it to a family member for filing in the Court (see, e.g., Dkt. No. 1, Attach. 10, at 1); (2) with respect to Grievance Number GNE-9664-17 ("Grievance Number 1"), by failing to wait for a decision by CORC (regarding the superintendent's denial of this grievance) before commencing this action, Plaintiff has impermissibly failed to exhaust his available administrative remedies before filing suit; (3) with respect to Plaintiff's remaining grievances, by filing his appeal from the denial of Grievance Number GNE-9766-18 ("Grievance Number 2") after commencing this action, and by filing Grievance Numbers GNE-9848-18 ("Grievance Number 3") and GNE-9922-18 ("Grievance Number 4") after commencing this action, Plaintiff has impermissibly failed to exhaust his available administrative remedies before filing suit; (4) Plaintiff's filing of an Amended Complaint nearly four months after the docketing of his Complaint has not cured his failure to exhaust, because the operative date (for the purpose of conducting an exhaustion analysis) is the date of Plaintiff's original Complaint; and (5) Plaintiff has presented no evidence showing that his administrative remedies were unavailable to him before commencing this action, due to (for example) Defendant Mauro's dilatory forwarding of Plaintiff's appeals and CORC's dilatory decisions of those appeals. (Dkt. No. 60, at Part III.B.)
Generally, in his Objections, Plaintiff asserts the following two arguments: (1) with respect to Grievance Number 1, Magistrate Judge Peebles erred by overlooking the fact that, although Defendant Mauro's signed Plaintiff's appeal on January 10, 2018 (and thus was obligated, pursuant to DOCCS Directive 4040, to forward that appeal to CORC by January 17, 2018), CORC did not receive that appeal until March 12, 2018; and (2) with respect to Grievance Numbers 2, 3 and 4, Magistrate Judge Peebles erred by overlooking the fact that Plaintiff was effectively prevented from exhausting his administrative remedies due to (a) Defendant Muaro's dilatoriness in processing his grievances and (b) Defendants' harassment and intimation of Plaintiff. (Dkt. No. 66, at Parts A and B.)
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).
After conducting the appropriate review, the 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).
The Court begins by noting that, even when construed with the utmost of special solicitude, the arguments asserted in Plaintiff's Objections are mere reiterations of arguments asserted in his opposition memorandum of law and sur-reply memorandum of law. (Compare Dkt. No. 66, at Parts A and B [Plf.'s Obj.] with Dkt. No. 55, Attach. 1, at 5-11 [attaching pages "2" through "8" of Plf.'s Opp'n Memo. of Law] and Dkt. No. 59, at 3-8 [attaching pages "1" through "6" of Plf.'s Sur-Reply Memo. of Law].) As a result, the "challenged" portions of the Report-Recommendation are entitled to only a clear-error review. See, supra, Part II of this Decision and Order.
After carefully reviewing the relevant papers herein, including the Magistrate Judge's thorough Report-Recommendation, the Court can find no clear-error in the Report-Recommendation: Magistrate Judge Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein.
The Court would add only that, even if it were to subject the Report-Recommendation to a de novo review, it would survive that review.
The Court rejects the first argument in Plaintiff's Objections because Magistrate Judge Peebles did, in fact, consider the fact referenced by Plaintiff, finding that (1) the fact is of little if any materiality because Plaintiff should have written, but failed to write, to either Defendant Mauro or CORC within 45 days of the filing of the appeal, and (2) in any event, only 61 days elapsed between when CORC should have received Plaintiff's appeal (on January 17, 2018) and when Plaintiff filed his Complaint (on March 19, 2018), which has not yet been found to be a long enough time to render an Inmate Grievance Program unavailable. (Dkt. No. 60, at 20-23 & n.13.)
The Court also rejects the second argument in Plaintiff's Objections. Plaintiff does not specify any previously submitted admissible record evidence of harassment and intimation by Defendants that occurred before March 19, 2019, in response Plaintiff's filing grievances and/or appeals from the denials of his grievances. Furthermore, even if Defendant Mauro somehow delayed the filing of Grievance Numbers 3 and 4, those grievances regarded events that allegedly occurred in April and May of 2018, long after Plaintiff filed his Complaint. Finally, the Court notes that, if it were to consider Plaintiff's Complaint as having been filed on February 20, 2018 (as opposed to March 19, 2018), the prematurity of Plaintiff's Complaint would become even more pronounced.
