Opinion
9:15-CV-1083 (DNH/ML)
12-19-2019
TERRY DAUM, Plaintiff, v. DELVIN, Captain; SERGEANT CROSS; and C. STICKNEY, Correction Officer, Defendants.
APPEARANCES: SAUNDERS KAHLER L.L.P. Attorneys for Plaintiff 185 Genesee Street Suite 1400 Utica, New York 13501 HON. LETITIA JAMES Attorney General of the State of New York Attorney for Defendants The Capital Albany, New York 12224 OF COUNSEL: MICHAEL D. CALLAN, ESQ. MARK G. MITCHELL, ESQ. Ass't Attorney General
APPEARANCES: SAUNDERS KAHLER L.L.P.
Attorneys for Plaintiff
185 Genesee Street
Suite 1400
Utica, New York 13501 HON. LETITIA JAMES
Attorney General of the State of New York
Attorney for Defendants
The Capital
Albany, New York 12224 OF COUNSEL: MICHAEL D. CALLAN, ESQ. MARK G. MITCHELL, ESQ.
Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER
Plaintiff Terry Daum brought this civil rights action pursuant to 42 U.S.C. § 1983. On September 5, 2019, the Honorable Daniel J. Stewart, United States Magistrate Judge, held an exhaustion hearing on defendants' affirmative defense of failure to exhaust. On October 30, 2019, Judge Stewart advised by Report-Recommendation that defendants have not sustained their burden of proof on the affirmative defense of failure to exhaust and that the matter proceed to trial. No objections to the Report-Recommendation have been filed.
Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. The administrative remedies under DOCCS' IGP were rendered unavailable to plaintiff and therefore his claims in this action are not barred by the PLRA based upon his failure to exhaust; and
2. Trial is scheduled for Monday, April 13, 2020 in Utica, New York. Pre-trial submissions are due on or before Monday, March 30, 2020.
IT IS SO ORDERED.
/s/_________
United States District Judge Dated: December 19, 2019
Utica, New York.