Opinion
9:22-CV-702
07-06-2023
AKO K. BURRELL Plaintiff, Pro Se HON. LETITIA JAMES New York State Attorney General Attorneys for Defendants OLIVIA R. COX, ESQ. Ass't Attorney General
AKO K. BURRELL Plaintiff, Pro Se
HON. LETITIA JAMES New York State Attorney General Attorneys for Defendants OLIVIA R. COX, ESQ. Ass't Attorney General
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, UNITED STATES DISTRICT JUDGE
On July 1, 2022, pro se plaintiff Ako K. Burrell (“plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision, filed this 42 U.S.C. § 1983 action alleging that defendants violated his civil rights while he was confined at Upstate Correctional Facility in Malone, New York. Dkt. No. 1. Along with his complaint, plaintiff also sought leave to proceed in forma pauperis (“IFP Application”). Dkt. Nos. 3, 4.
On February 9, 2023, this Court granted plaintiff's IFP Application, dismissed certain claims and certain defendants, and sent the parties to discovery on plaintiff's (1) Eighth Amendment excessive force and failure-to-intervene claims against Hastings, Spinner, and Mainville; and (2) First Amendment retaliation claims against Fontain, Johnson, Nelson, Bullock, Niles, Sawyer, Rowe, Ozborne, Hastings, Spinner, and Mainville. Dkt. No. 15.
On April 25, 2023, a subset of these defendants-in particular, Fontain, Johnson, Nelson, Bullock, Niles, Sawyer, Rowe, and Ozborne-moved for summary judgment under Federal Rule of Civil Procedure (“Rule”) 56 based on plaintiff's alleged failure to exhaust his administrative remedies. Dkt. No. 22. The motion was fully briefed. Dkt. Nos. 26, 27.
Defendants did not seek summary judgment on plaintiff's claims against defendants Hastings, Spinner, and Mainville.
On June 13, 2023, U.S. Magistrate Judge Andrew T. Baxter advised by Report & Recommendation (“R&R”) that the moving defendants' motion for summary judgment be granted and plaintiff's complaint be dismissed without prejudice against defendants Fontain, Johnson, Nelson, Bullock, Niles, Sawyer, Rowe, and Ozborne. Dkt. No.
Plaintiff has not filed objections, and the time period in which to do so has expired. See Dkt. No. 28. Upon review for clear error, the R&R is accepted and will be adopted in all respects. See FED. R. CIV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. Defendants' motion for summary judgment is GRANTED;
3. Plaintiff's complaint is DISMISSED without prejudice against defendants Fontain, Johnson, Nelson, Bullock, Niles, Sawyer, Rowe, and Ozborne based on a failure to exhaust administrative remedies.
IT IS SO ORDERED.