Smith v. Miller et al, No. 9:2020cv01435 - Document 31 (N.D.N.Y 2022)

Court Description: DECISION AND ORDER that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 30 ) is ACCEPTED and ADOPTED in its entirety. Defendants' motion for summary judgment (Dkt. No. 23 ) is DENIED. Defendants' partial motion to dismi ss Plaintiff's claims against Defendants Frasier and Miller for failure to state a claim (Dkt. No. 23 ) is GRANTED. The Clerk of Court is directed to TERMINATE as Defendants in this action Defendants Frasier and Miller. Within FOURTEEN (14 ) DAYS from the date of this Decision and Order, Plaintiff shall SHOW CAUSE in writing as to why his claims against Defendant Sgt. John Doe should not be sua sponte DISMISSED without prejudice for failure to serve under Fed. R. Civ. P. 4(m) and/or failure to prosecute/comply with a Court Order pursuant to Fed. R. Civ. P. 41(b). The parties are respectfully advised that, in the near future, the undersigned shall be appointing pro bono trial counsel for Plaintiff, and that the undersigneds Courtroom Deputy will be contacting counsel in order to schedule a trial in this action, which shall begin with an exhaustion hearing. Signed by Chief Judge Glenn T. Suddaby on 1/18/2022. (Copy served upon plaintiff via regular mail) (sal)

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Smith v. Miller et al Doc. 31 Case 9:20-cv-01435-GTS-CFH Document 31 Filed 01/18/22 Page 1 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ___________________________________________ SINCERE SMITH, Plaintiff, 9:20-CV-1435 (GTS/CFH) v. MILLER, Super.; C.O. B. HUGGLER; C.O. A. DOWNING; D.S.S. FRASIER, Dep. Super. of Security; and SGT. JOHN DOE, Defendants. ___________________________________________ APPEARANCES: OF COUNSEL: SINCERE SMITH, 18-A-4013 Plaintiff, Pro Se Mid-State Correctional Facility P.O. Box 2500 Marcy, New York 13403 HON. LETITIA A. JAMES Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 BRENDA T. BADDAM, ESQ. Assistant Attorney General GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in this pro se prisoner civil rights action filed by Sincere Smith (“Plaintiff”) against the five above-captioned employees of the New York State Department of Corrections and Community Supervision (“Defendants”) pursuant to 42 U.S.C. § 1983, are (1) Defendants’ motion for summary judgment based on Plaintiff’s failure to exhaust Dockets.Justia.com Case 9:20-cv-01435-GTS-CFH Document 31 Filed 01/18/22 Page 2 of 3 his available administrative remedies before filing suit, and their partial motion to dismiss Plaintiff’s claims against Defendants Frasier and Miller for failure to state a claim, and (2) United States Magistrate Judge Christian F. Hummel’s Report-Recommendation recommending that Defendants’ motion for summary judgment be denied and that their partial motion to dismiss be granted. (Dkt. Nos. 23, 30.) Neither party has filed an objection to the ReportRecommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) After carefully reviewing the relevant papers herein, the Court can find no clear-error in Magistrate Judge Hummel’s thorough Report-Recommendation:1 Magistrate Judge Hummel 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, Defendants’ motion for summary judgment is denied, and Defendants’ partial motion to dismiss is granted. ACCORDINGLY, it is ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 30) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion for summary judgment (Dkt. No. 23) is DENIED; and it is further 1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). 2 Case 9:20-cv-01435-GTS-CFH Document 31 Filed 01/18/22 Page 3 of 3 ORDERED that Defendants’ partial motion to dismiss Plaintiff’s claims against Defendants Frasier and Miller for failure to state a claim (Dkt. No. 23) is GRANTED; and it is further ORDERED that the Clerk of Court is directed to TERMINATE as Defendants in this action Defendants Frasier and Miller; and it is further ORDERED that, within FOURTEEN (14) DAYS from the date of this Decision and Order, Plaintiff shall SHOW CAUSE in writing as to why his claims against Defendant Sgt. John Doe should not be sua sponte DISMISSED without prejudice for failure to serve under Fed. R. Civ. P. 4(m) and/or failure to prosecute/comply with a Court Order pursuant to Fed. R. Civ. P. 41(b). The parties are respectfully advised that, in the near future, the undersigned shall be appointing pro bono trial counsel for Plaintiff, and that the undersigned’s Courtroom Deputy will be contacting counsel in order to schedule a trial in this action, which shall begin with an exhaustion hearing. Dated: January 18, 2022 Syracuse, New York 3

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