Opinion
No. 05-3696-pr.
November 20, 2008.
Appeal from a judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
FOR PLAINTIFF-APPELLANT: Anthony Ferrer, pro se. FOR DEFENDANTS-APPELLEES: Richard Dearing, Assistant Solicitor General (Andrew M. Cuomo, Attorney General of the State of New York, on the brief, Barbara D. Underwood, Solicitor General, Benjamin N. Gutman, Deputy Solicitor General, of counsel), Office of the Attorney General, New York, NY.
PRESENT: JOSÉ A. CABRANES, CHESTER J. STRAUB, ROBERT D. SACK, Circuit Judges.
In July 2003, plaintiff Anthony Ferrer, pro se and incarcerated, filed a complaint pursuant to 42 U.S.C. § 1983, against F. Tracy, T. Woliver, J. Mastandrea, D. Alston, J. McKenna, A. Jones, S. Jackson, and R. Martino (collectively "defendants") — all employees of the New York State Department of Correctional Services ("DOCS") — claiming damages for excessive use of force. See ROA doc. 2. Specifically, Ferrer alleged that in February 2003, defendants Woliver, Alston, and Mastandrea physically assaulted him after a verbal dispute, and that he was further beaten by defendants McKenna, Jones, Jackson, and Martino later that day. Id. Under the 2003 New York Codes, Rules and Regulations, an inmate had fourteen days following an alleged incident to file an initial grievance. See 7 N.Y.C.R.R. § 701.7(a)(1) (2003). Ferrer filed a grievance in June 2003 — almost four months after the alleged incident of which he complained. See Appellees' App. at 42. The Superintendent of the prison dismissed the grievance on July 14, 2003, on the ground that it was untimely. Id. at 46. Though Ferrer later alleged that he appealed this dismissal to the Central Office Review Committee ("CORC"), see ROA doc. 19, there is no decision on record from CORC. On July 30, 2003, Ferrer filed this lawsuit.
In November 2003, defendants filed a motion to dismiss, arguing (1) that Ferrer's claim was procedurally barred because he had not appealed the July 2003 dismissal of his grievance, and thus had failed to exhaust all available administrative remedies as required by 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act of 1995 ("PLRA"); and (2) that Ferrer had failed to allege defendant Tracy's personal involvement in the incidents. See ROA doc. 16. The motion was referred to Magistrate Judge George A. Yanthis, who recommended dismissal of Ferrer's complaint against Tracy, but otherwise denial of the motion to dismiss because, based on the record, there was some evidence that Ferrer had appealed to CORC. See ROA doc. 22. The District Court adopted the magistrate judge's Report and Recommendation in full. See id., handwritten order of District Court, dated 1/30/2004.
Specifically, Ferrer's response to defendants' motion to dismiss included a copy of his alleged appeal statement, though there was no evidence that this appeal was ever sent to CORC. See ROA doc. 19 at Ex. B.
In November 2004, defendants moved for summary judgment. In support of their motion, defendants resubmitted, among other things, an affidavit from the Director of the Inmate Grievance Program at DOCS, stating that there was no record of an appeal from Ferrer to CORC in the computer database of inmate grievances. See Appellees' App. at 49. Ferrer responded to the summary judgment motion, but did not address the argument that he had failed to exhaust his administrative remedies. See ROA doc. 47. On March 24, 2005, the magistrate judge issued a Report and Recommendation, recommending that summary judgment be granted in favor of defendants. See Appellees' App. at 11-22. Specifically, the magistrate judge found that Ferrer had failed to (1) adequately address the exhaustion-of-administrative-remedies argument; (2) submit new evidence to support his contention that he had appealed the denial of his grievance; or (3) provide any evidence to contradict defendants' assertion that his initial grievance was untimely. Id. at 18-19. The Report and Recommendation informed the parties that they had thirteen working days (until April 12, 2005) to file objections and that failure to file would preclude appellate review. Id. at 21. On April 18, 2005, the District Court adopted the Report and Recommendation and granted summary judgment to defendants, noting that "[n]o papers [had been] received in opposition." Id. at 10. Judgment was entered on April 20, 2005. The District Court's docket sheet reflects a letter from Ferrer to the Court dated April 28, 2005, requesting an extension of time to file objections to the Report and Recommendation. See ROA doc. 51. Though there is no record of a response to this letter from the Court, the Pro Se Office responded to defendant by letter on April 29, 2005, and noted that because his case was closed on April 20, 2005, no further papers could be accepted for filing. See Appellant's Br. at Ex. E-2. On May 5, 2005, Ferrer filed a timely notice of appeal. See ROA doc. 52. We assume the parties' familiarity with the remaining facts and procedural history of the case.
We review de novo an order granting summary judgment. See, e.g., Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is appropriate only if "there is no genuine issue as to any material fact" and the moving party is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
We conclude that summary judgment was properly granted in favor of defendants. As an initial matter, Ferrer did not file a timely objection to the magistrate judge's recommended ruling that Ferrer had not addressed the exhaustion of his administrative remedies, as required by the PLRA. See Appellees' App. at 10. We have previously held that "[a]s a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point." Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003); see also McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam). This rule also applies to pro se litigants as long as adequate notice is provided. See Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). Since "the rule is a non-jurisdictional waiver provision," however, we "may excuse the default in the interests of justice." Thomas v. Arn, 474 U.S. 140, 155 (1985). We conclude that the "interests of justice" test was not met here. Though Ferrer now claims on appeal that he sent a letter on April 4, 2005, requesting an extension of time to file his objections, see Appellant's Br. at Ex. C, the District Court record includes no evidence that this letter was ever sent or received. Moreover, even if Ferrer had requested an extension, the District Court clearly did not grant one, and Ferrer would have known that he still only had until April 12, 2005, to file his objections. The only other justification Ferrer gives for his untimeliness is that he had requested that his objections be typed by the Attica Correctional Facility law library, and he did not receive the typed copies until after the deadline. Id. at 4. This excuse does not justify a failure to object as Ferrer simply could have handwritten his objections in a timely fashion.
Even assuming, arguendo, that Ferrer had preserved his right to appeal, we would still hold that summary judgment was properly granted in defendants' favor. The PLRA requires prisoners to exhaust their administrative remedies before bringing suit. See Macias v. Zenk, 495 F.3d 37, 40 (2d Cir. 2007). An independent review of the evidence makes clear that Ferrer failed to properly exhaust his administrative remedies, and thus that the District Court properly granted summary judgment to defendants.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is AFFIRMED.