Dickinson
v.
York

This case is not covered by Casetext's citator
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORKAug 6, 2018
Civil Action No. 9:16-CV-0152 (LEK/DEP) (N.D.N.Y. Aug. 6, 2018)

Civil Action No. 9:16-CV-0152 (LEK/DEP)

08-06-2018

SHANNON C. DICKINSON, Plaintiff, v. NATHAN YORK, et al., Defendants.

APPEARANCES: FOR PLAINTIFF: SHANNON C. DICKINSON, Pro Se 16-A-4567 Green Haven Correctional Facility P.O. Box 4000 Stormville, N.Y. 12582 FOR DEFENDANTS: JOHNSON & LAWS, LLC 648 Plank Road, Suite 204 Clifton Park, N.Y. 12065 OF COUNSEL: GREGG T. JOHNSON, ESQ. APRIL J. LAWS, ESQ. COREY A. RUGGIERO, ESQ. LORAINE C. JELINEK, ESQ.


APPEARANCES: FOR PLAINTIFF: SHANNON C. DICKINSON, Pro Se
16-A-4567
Green Haven Correctional Facility
P.O. Box 4000
Stormville, N.Y. 12582 FOR DEFENDANTS: JOHNSON & LAWS, LLC
648 Plank Road, Suite 204
Clifton Park, N.Y. 12065 OF COUNSEL: GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
COREY A. RUGGIERO, ESQ.
LORAINE C. JELINEK, ESQ. DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

This is a disability discrimination and civil rights action brought by pro se plaintiff Shannon C. Dickinson, a prison inmate, pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12102 et seq.; section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 701 et seq.; and 42 U.S.C. § 1983. Although plaintiff is now in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), he was a pre-trial detainee being held by defendant Warren County ("County") at the time of the events giving rise to this action. Plaintiff's third amended complaint, the currently operative pleading, alleges that defendant Warren County and some of the individuals employed by the County discriminated against him due to his disability and violated his due process rights under the Fourteenth Amendment while he was confined in the Warren County Correctional Facility ("WCCF").

Currently pending before the court is a motion brought by the defendants requesting the entry of summary judgment dismissing plaintiff's third amended complaint based on various grounds, including that plaintiff failed to exhaust the available administrative remedies prior to commencing this action. For the reasons set forth below, I recommend that the motion be granted. I. BACKGROUND

In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in the plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

Plaintiff is a prison inmate currently being held in the custody of the DOCCS and confined in a New York State prison facility. Dkt. No. 101. At the times relevant to this action, however, plaintiff was a pre-trial detainee confined in the WCCF located in Lake George, New York. Dkt. No. 23 at 2-3.

Plaintiff "is a paraplegic who suffers from complete paralysis in both legs and [has] no feeling from the chestline and below." Dkt. No. 23 at 1. Due to his paralysis, plaintiff is bound to a wheelchair and needs assistance transferring to and from his wheelchair, including when he needs to ride in a vehicle, shower, or get into bed. Id.; Dkt. No. 83-7 at 2-3. Plaintiff alleges that, while a pre-trial detainee at the WCCF, he was transported out of the prison for court appearances on several occasions between August 2015 and April 2016. Dkt. No. 23 at 2; Dkt. No. 83-5 at 4; Dkt. No. 83-7 at 16. Although plaintiff alleges in his third amended complaint that he was transported in a patrol car and "was unassisted in all transfers" to and from his wheelchair while entering and exiting the car, Dkt. No. 23 at 2, 7, there is evidence in the record suggesting that WCCF corrections officers would stabilize the wheelchair while plaintiff lifted himself to and from his wheelchair. See, e.g., Dkt. No. 83-5 at 4; Dkt. No. 83-9 at 3; Dkt. No. 83-11 at 3.

In 1991, plaintiff shot himself in the neck, causing a spinal cord injury and resulting in paralysis. Dkt. No. 83-7 at 2.

Plaintiff alleges that, on January 4, 2016, he injured his neck and back when he slipped getting out of the patrol car and into his wheelchair. Dkt. No. 23 at 8-9; Dkt. No. 83-7 at 12-13. Specifically, he claims that he felt something "pop[] in [his] neck and back" and that, although he had experienced a shoulder dislocation in 1990 and a torn rotator cuff in 2010, until the incident on January 4, 2016, he had never experienced a popping sensation in his neck and back. Dkt. No. 83-7 at 9-13.

Plaintiff also alleges that he was deprived of proper clothing "for over 4 months" while confined in the WCCF. Dkt. No. 23 at 8; Dkt. No. 83-5 at 19. In particular, plaintiff was required to wear a full jumpsuit, although he did not wear the portion designed to cover his torso. Id. Instead, plaintiff sat on the top half of the jumpsuit, which became a hazard when he transferred out of his wheelchair because it could become caught on his wheelchair, risking a fall. Dkt. No. 23 at 8; Dkt. No. 83-5 at 19.

Finally, plaintiff contends that he was denied a "safe shower chair" during his stay in the WCCF. Dkt. No. 23 at 8. The record reveals, however, that a waterproof wheelchair that plaintiff could use in the shower was purchased on August 26, 2015, shortly after his arrival at the facility. Dkt. No. 83-4; Dkt. No. 83-21 at 4.

The record now before the court reflects that plaintiff filed a grievance while confined in the WCCF concerning the lack of access to a wheelchair-accessible van on or about November 12, 2015. Dkt. No. 83-5 at 4. The grievance was reviewed by Corrections Officer Tourge, who is not a named defendant in this action, and determined it to be unfounded. Id. at 5. Plaintiff's appeals of that decision to the Chief Administrative Officer and the Citizen's Policy and Complaint Review Council ("CPCRC") were denied. Id. at 2, 6. Plaintiff also filed a grievance requesting a two-piece uniform on or about September 17, 2015. Id. at 19. That grievance was accepted on September 22, 2015, id. at 20, and plaintiff did not appeal that decision.

There is evidence in the record that, on September 22, 2015, a two-piece prison uniform was ordered for him and was expected to arrive by the end of October 2015. Dkt. No. 83-5 at 20, 23.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on February 10, 2016, by the filing of a complaint. Dkt. No. 1. Shortly thereafter, he filed an amended complaint, which was reviewed by Senior District Judge Lawrence E. Kahn pursuant to 28 U.S.C. § 1915A. Dkt. No. 6. In a decision issued on April 28, 2016, Judge Kahn dismissed the plaintiff's amended complaint, with leave to replead. Id.

Plaintiff availed himself of the opportunity to amend, filing a second amended complaint on May 25, 2016. Dkt. No. 9. That complaint was accepted for filing, except that two of plaintiff's claims asserted against certain named defendants were dismissed. Dkt. No. 10.

On September 28, 2016, plaintiff submitted a motion for leave to amend his second amended complaint. Dkt. No. 20. The court granted that motion, and plaintiff's third amended complaint was accepted for filing on November 29, 2016. Dkt. No. 22.

Plaintiff's third amended complaint names the following individuals and/or entities as defendants: (1) Nathan York, Warren County Sheriff; (2) Warren Corrections Officer Neil Mason; (3) Warren Corrections Officer Christopher Green; (4) Warren Corrections Officer Richard Reynolds; (5) Warren Corrections Officer Keven Smith; (6) Warren Corrections Officer Jordan Pond; (7) Warren Corrections Officer Michael Harpp; (8) Warren Corrections Officer James Trottier; (9) Warren Corrections Officer Christopher Slater; (10) Warren Corrections Officer Michael Curtis; (11) Warren Corrections Officer Keenan Wittenberg; (12) Warren Corrections Officer Curtis Lemelin; (13) Warren Corrections Officer William Sorensen; (14) Warren Corrections Officer Mattison; (15) Warren Corrections Officer Michael Allison; (16) Warren Corrections Officer Hill; (17) Warren Corrections Officer Cynthia Vandenburgh; (18) Warren Corrections Officer Whitney Hoerter; (19) Warren Corrections Sergeant Derek Keays; (20) Warren Corrections Lieutenant Daniel Clifford; (21) Warren Corrections Lieutenant Albert Maday; (22) Warren County; and (23) Warren Corrections Sergeant Wayne Farmer. Dkt. No. 23 at 3-4. Liberally construed, the third amended complaint asserts causes of action against all defendants for violations of his rights under the ADA, RA, and Fourteenth Amendment to the United States Constitution. See generally Dkt. No. 23.

It is apparently not clear to defendants whether plaintiff intended to name Corrections Officer John Hill or Corrections Officer Michael Hill as a defendant in this action. Dkt. No. 83-1 at 3. It is not necessary for the court to resolve this question, however, to decide the pending motion.

The clerk of the court is respectfully directed to change the court's records to reflect the correct spelling of the last name of defendants Hoerter (Dkt. No. 83-18 at 1), Sorensen (Dkt. No. 83-27 at 1), Trottier (Dkt. No. 83-28 at 1), and Wittenberg (Dkt. No. 83-30 at 1).

Following the close of discovery, defendants filed the currently pending motion for summary judgment. Dkt. No. 83. Defendants contend that plaintiff's third amended complaint should be dismissed because, inter alia, plaintiff failed to exhaust the available administrative remedies prior to filing this action and, in any event, defendants provided plaintiff reasonable accommodations and there is no evidence to support a factfinder's conclusion that they violated plaintiff's due process rights. See generally Dkt. No. 83-32. Plaintiff has since responded in opposition to defendants' motion, Dkt. No. 90, and defendants have submitted a reply. Dkt. No. 96. Defendants' motion is now fully briefed and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Legal Standard Governing Motions for Summary Judgment

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Exhaustion of Available Administrative Remedies

In support of their motion, defendants contend that all of plaintiff's claims are subject to dismissal in this action because plaintiff failed to exhaust the available administrative remedies prior to filing his original complaint. Dkt. No. 83-32 at 12-15.

1. Governing Legal Principles

The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed to fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); see also Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).

While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "'in a substantive sense,'" an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).

The administrative grievance program at the WCCF is governed by Title 9 of the Compilation of Codes, Rules, and Regulations of the State of New York. 9 N.Y.C.R.R. § 7032.1. In accordance with the governing regulations, an inmate must file a grievance within five days of the date of the act or occurrence giving rise to the grievance. 9 N.Y.C.R.R. § 7032.4(d). Within five business days of receipt of the grievance, the facility's grievance coordinator must then issue a written determination. 9 N.Y.C.R.R. § 7032.4(i). The inmate has two business days from the date he receives the grievance coordinator's decision to appeal to the facility's chief administrative officer. 9 N.Y.C.R.R. § 7023.4(j). The chief administrative officer, in turn, then has five business days to issue a determination on the inmate's appeal. 9 N.Y.C.R.R. § 7023.4(k). If the inmate is not satisfied at that point, he has three business days to appeal the chief administrative officer's determination to the State Commission of Correction. 9 N.Y.C.R.R. § 7032.5(a). The facility grievance coordinator has three days after he receives the inmate's notice of appeal to forward the appeal, the investigation report, and all other pertinent documents to the CPCRC. 9 N.Y.C.R.R. § 7032.5(b). Generally, the CPCRC is required to issue a written determination within forty-five business days of the receipt of the grievance and investigatory materials. 9 N.Y.C.R.R. § 7032.5(c).

If a plaintiff fails to follow each of the required steps of the prescribed administrative grievance procedure prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks omitted)).

While the PLRA mandates exhaustion of available administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies." (quotation marks omitted)). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (quotation marks omitted).

In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA. Ross, 136 S. Ct. at 1859-60. Under the first, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. In addition, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. The Court explained that, "[i]n this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. The third scenario in which administrative remedies are deemed unavailable to prisoners is when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.

According to the Second Circuit, "the three circumstances discussed in Ross do not appear to be exhaustive[.]" Williams, 829 F.3d at 123 n.2.

2. Analysis

a. Plaintiff's Request for a Wheelchair-Accessible Van

Plaintiff filed a grievance on November 12, 2015, requesting that he be "transported to and from court" in a "wheelchair equipped van," rather than a police patrol car, so he would not have to transfer himself to and from his wheelchair. Dkt. No. 83-5 at 4; see also Dkt. No. 83-7 at 27. That grievance is identified in the record as grievance number 2015-1245. Dkt. No. 83-5 at 4. The grievance was determined to be unfounded by Corrections Officer Tourge on November 16, 2015. Dkt. No. 83-5 at 5. Plaintiff appealed that determination on the same date to the WCCF Chief Administrative Officer, who affirmed the decision on November 17, 2015. Id. at 6. Plaintiff then appealed that determination to the CPCRC on November 18, 2015. Id.; Dkt. No. 83-7 at 27-28. Although New York State regulations mandate that the CPCRC issue a decision on an inmate's appeal within forty-five business days of its receipt of such an appeal, on April 24, 2016, plaintiff filed a second grievance, grievance number 2016-0401, complaining that he had not yet received a response from the CPCRC to his appeal of grievance number 2015-1245. Dkt. No. 83-5 at 15. Grievance numbers 2015-1245 and 2016-0401 were both then forwarded to the CPCRC on April 20, 2016, and April 29, 2016, respectively. Id. at 3, 14. The CPCRC finally responded, denying plaintiff's grievances, on June 9, 2016. Id. at 2, 13.

Plaintiff filed his original complaint in this action on or about February 10, 2016. Dkt. No. 1. Because the CPCRC did not issue its decision on plaintiff's appeal of grievance numbers 2015-1245 and 2016-0401 until four months later after this action was commenced, it is clear that plaintiff did not fully exhaust the available administrative remedies concerning his request for a wheelchair-accessible van. Dkt. No. 83-5 at 2, 13; see Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) ("[S]ubsequent exhaustion after suit is filed therefore is insufficient."), overruled on other grounds, Nussle, 534 U.S. at 516.

Plaintiff, however, contends that the administrative procedure was not available to him because the CPCRC did not respond to his appeal within the forty-five day timeframe required by the governing regulations. Dkt. No. 90 at 3-6. Courts in this circuit have decided this question differently, largely depending upon the amount of time that elapses between the inmate's appeal and the appeal determination. Compare Rodriguez v. Favro, No. 14- CV-0418, 2016 WL 1253848, at *5-6 (N.D.N.Y. Mar. 9, 2016) (Peebles, M.J.) report and recommendation adopted by 2016 WL 1261120 (N.D.N.Y. Mar, 30, 2016) (Hurd, J.) (finding that the grievance procedure was available to the plaintiff even where the CPCRC issued its decision almost three months beyond the forty-five day time limit provided for in the regulations); with Torres v. Carry, 672 F. Supp. 2d 338, 345 (S.D.N.Y. 2009) (finding that the grievance procedure was unavailable to plaintiff because "the final administrative decision maker ha[d] lost [the plaintiff]'s appeal or has otherwise neglected, almost four years after [the plaintiff] claims he filed his appeal, to issue a final administrative determination").

All unreported decisions cited to in this report have been appended for the convenience of the pro se plaintiff.

In this case, although six months passed between the time plaintiff filed his appeal to the CPCRC and the issuance of the CPCRC's decision, Dkt. No. 83-5 at 2, 6, two critical facts lead me to conclude that the administrative procedure remained available to plaintiff in this case. Plaintiff signed his appeal to the CPCRC on November 18, 2015. Id. at 6. The regulations state that the grievance coordinator must submit the pertinent materials to the CPCRC within three business days of receiving notice of the inmate's appeal, and that the CPCRC then has forty-five business days from the date that it receives the pertinent grievance materials from the facility grievance coordinator to render a determination. 9 N.Y.C.R.R. §§ 7032.5(c), 7032.5(d)(1). Had the regulations been strictly followed, and assuming the CPCRC received plaintiff's appeal on November 23, 2015, the latest plaintiff should have received a response from the CPCRC is January 29, 2016. Plaintiff, therefore, only waited approximately one additional week beyond the timeframe set forth in the regulations before filing his complaint in this action. Dkt. No. 1. No court in this circuit that has decided that an administrative procedure was unavailable to an inmate because the final determination was not rendered within the specified regulatory timeframe, and none have contemplated that any delay, regardless of its length, automatically renders the administrative procedure unavailable to a prisoner. In my view, a one-week delay is not unreasonable such that it would make a prison grievance procedure unavailable to the plaintiff under the PLRA and Ross.

It is worth noting in this context that, although the court received plaintiff's original complaint on February 10, 2016, plaintiff signed the pleading on February 3, 2016. Dkt. No. 1 at 5.

Moreover, although the regulations do not specifically articulate what an inmate can or should do in the event a decision on his appeal is not rendered within the specified timeframe, it is plain from the record that plaintiff could have filed a grievance complaining of the CPCRC's non-response, but did not do so until April 24, 2016, long after he filed his complaint in this action. Dkt. No. 83-5 at 15-16. Upon receiving grievance number 2016-0401, which complained of the CPCRC's non-response to plaintiff's appeal of grievance number 2015-1245, the grievance coordinator promptly forwarded it to the CPCRC. Id. at 14. Given this series of events, it appears clear that the administrative procedure at the WCCF remained available to plaintiff even when the CPCRC failed to provide a written response to plaintiff's appeal within the forty-five day period outlined in the regulations.

For the reasons discussed above, I find that plaintiff did not exhaust the available administrative remedies prior to filing this action concerning his request for a wheelchair-accessible van.

b. Plaintiff's Requests for a Two-Piece Uniform and Waterproof Wheelchair

Plaintiff also contends that he was denied safe prison attire and a shower-appropriate wheelchair while he was incarcerated at the WCCF. Dkt. No. 23 at 8. There is no record evidence, however, demonstrating plaintiff appealed a grievance concerning either of those complaints to the CPCRC. Instead, the record reveals that officials at the facility ordered plaintiff a two-piece uniform in or around mid-October 2015, and that they ordered him a waterproof, shower-ready wheelchair on or about August 26, 2015. Dkt. No. 83-3 at 3; Dkt. No. 83-4 at 2; Dkt. No. 83-5 at 23. Accordingly, I recommend defendants' motion be granted to the extent it requests dismissal of plaintiff's claims concerning his prison uniform and a waterproof wheelchair on the ground that plaintiff did not fully exhaust the administrative remedies.

IV. SUMMARY AND RECOMMENDATION

Defendants cite several grounds for dismissal of plaintiff's third amended complaint, including plaintiff's failure to exhaust the available administrative remedies prior to filing this lawsuit. Because it is clear based on the record that plaintiff did not exhaust the prescribed grievance process before filing this action, and that the administrative procedure remained available to him at all times, it is hereby respectfully

RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 83) be GRANTED; and it is further

ORDERED that the clerk modify the court's records to reflect the correct spelling of the following defendants' last names: (1) defendant Trottier, (2) defendant Wittenberg, (3) Lemelin, (4) defendant Sorensen, and (5) defendant Hoerter.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). --------

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 6, 2018


Syracuse, New York

/s/_________


David E. Peebles


U.S. Magistrate Judge