Caldwell v. Kusminisky et al, No. 9:2019cv00673 - Document 24 (N.D.N.Y 2020)
Court Description: DECISION AND ORDER: Accordingly, the Court ACCEPTS and ADOPTS the Report-Recommendation (Dkt. No. [22\) for the reasons stated therein. Defendant Kusminsky's motion for summary judgment (Dkt. No. 14 ) is DENIED WITHOUT PREJUDICE to renewal after the parties have had an opportunity to conduct discovery. Signed by Senior Judge Thomas J. McAvoy on 10/20/2020. {order served via regular mail on plaintiff}(nas)
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Caldwell v. Kusminisky et al Doc. 24 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ DAVID CALDWELL, Plaintiff, v. 9:19-CV-673 C.O. KUSMINSKY, et al., Defendants. _________________________________________ THOMAS J. McAVOY, Senior United States District Judge DECISION and ORDER I. INTRODUCTION This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Presently before the court is defendant Corrections Officer (“C.O.”) Kusminsky’s motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 14). C.O. Kusminsky filed the instant summary judgment motion in lieu of answering the complaint, contending that plaintiff failed to exhaust his administrative remedies. In his April 1, 2020 Report-Recommendation (Dkt. No. 22), Magistrate Judge Baxter recommends that C.O. Kusminsky’s motion for summary judgment be denied without prejudice to renewal after the parties have had an opportunity to conduct discovery. No objections to the Report-Recommendation have been filed, and the time to do so has expired. 1 Dockets.Justia.com II. DISCUSSION After examining the record, this Court has determined that the Report- Recommendation is not subject to attack for plain error or manifest injustice. III. CONCLUSION Accordingly, the Court ACCEPTS and ADOPTS the Report-Recommendation (Dkt. No. 22) for the reasons stated therein. Defendant Kusminsky’s motion for summary judgment (Dkt. No. 14) is DENIED WITHOUT PREJUDICE to renewal after the parties have had an opportunity to conduct discovery. IT IS SO ORDERED. Dated:October 20, 2020 2
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