Bernier v. ORC Sweet, No. 1:2015cv00209 - Document 105 (W.D.N.Y. 2020)

Court Description: DECISION AND ORDER adopting Magistrate Judge Hugh B. Scott's 104 Report and Recommendation. Defendant's 90 motion for summary judgment is granted. The Clerk of Court shall take all steps necessary to close the case. A copy of the Deci sion and Order along with this docket entry have been mailed to Jean Bernier, 29463-054, ALLENWOOD MEDIUM FEDERAL CORRECTIONAL INSTITUTION, Inmate Mail/Parcels, P.O. BOX 2000, WHITE DEER, PA 17887. SO ORDERED. Signed by Hon. Richard J. Arcara on 2/19/2020. (LAS)-CLERK TO FOLLOW UP-

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Bernier v. ORC Sweet Doc. 105 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK JEAN BERNIER, Plaintiff, DECISION AND ORDER 15-CV-209-A v. ORC SWEET, Defendant. This pro se civil rights case was referred to Magistrate Judge Hugh B. Scott, pursuant to 28 U.S.C. § 636(b)(1) for the conduct of pretrial proceedings. On January 22, 2020, Magistrate Judge Scott filed a Report and Recommendation (Dkt. No. 104), recommending that defendant Sweet’s motion for summary judgment (Dkt. No. 90) pursuant to Fed. R. Civ. P. 56 be granted. No objections to the Report and Recommendation have been filed. Upon review of the Report and Recommendation and the underlying record, it is hereby ORDERED, pursuant to 28 U.S.C. § 636(b)(1) and for the reasons set forth in the Report and Recommendation, the Court finds that plaintiff failed to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) because he did not f ile a timely inmate grievance claiming to have suffered retaliation caused by defendant Sweet for exercising a First Amendment right. Even though plaintiff attempts a collateral attack on findings of a New York court that may defeat the Court’s subject matter jurisdiction1, the Court does not reach those issues, or issues of claim preclusion 1 Under the Rooker-Feldman doctrine, the Court may lack subject matter jurisdiction over claims requiring review of a state-court judgment asserted by a state-court litigant complaining of injury caused by the prior judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005); Sung Cho v. City of New York, 910 F.3d 639 (2d Cir. 2018). and issue preclusion, because simpler grounds to resolve the case are sufficient. Defendant Sweet’s motion for summary judgment (Dkt. No. 90) is therefore granted because plaintiff failed to exhaust available administrative remedies as required by 42 U.S.C. § 1997e(a). The Clerk shall enter Judgment for defendant ORC Sweet and close the case. IT IS SO ORDERED. _s/Richard J. Arcara____ HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT Dated: February 19, 2020 2
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