Opinion
96 Civ. 6166 (LTS) (RLE)
September 23, 2002
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Patrick Graham ("Plaintiff") alleges that the officials of the New York State Department of Correctional Services ("DOCS") violated his First and Fourteenth Amendment rights when they confiscated "Five Percenter" literature from his cell. Magistrate Judge Ellis has issued a Report and Recommendation ("Report"), concluding that the Court should grant the motion of Defendant Commissioner Glenn S. Goord ("Defendant") for summary judgment based on Plaintiff's failure to exhaust administrative remedies. Plaintiff interposed timely objections to the Report, arguing principally that he had filed a complaint about the confiscation on April 16, 1996, but that Defendant failed to render a decision, thereby precluding him from filing an appeal. Plaintiff also advances several other arguments, none of which provides sufficient grounds to reject the Report. For the following reasons, the Court will adopt the Report.
Upon review of a report and recommendation, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C.A. § 636(b)(1)(C) (West 1993). "To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is not "facially erroneous"). The court is required to make a de novo determination as to the aspects of a report and recommendation to which objections are filed. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). When, however, a party makes frivolous or conclusory objections, or simply reiterates his original arguments, the district court reviews a report and recommendation only for clear error. See Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections that are frivolous, conclusory or general and constitute a rehashing of the same arguments and positions taken in original pleading). Objections to a magistrate judge's report and recommendation "are to be specific and are to address only those portions of the proposed findings to which a party objects." Camadaro, 806 F. Supp. at 381-82.
The Report concludes that Plaintiff failed to exhaust his administrative remedies and that his complaint should therefore be dismissed. (Report at 9-10.) Plaintiff now contends that he was unable to appeal to the Central Office Review Committee ("CORC") of the facility in which he was incarcerated at the time of the events complained of, the final step in the administrative process, because Defendant failed "to properly log and provide any `decision or disposition.'" (Pl.'s Objections at 3.) The Court has reviewed this issue de novo. While the parties disagree as to whether Plaintiff's April 16, 2002 letter to Superintendent Keane constitutes a grievance, the nature of the letter does not change the Court's analysis. Even if Plaintiff's letter is considered a grievance, Plaintiff's action must be dismissed because he unreasonably failed to appeal. The Supreme Court recently held that the requirement to exhaust administrative remedies under the Prison Litigation Reform Act ("PLRA") "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 122 S.Ct. 983, 992, 534 U.S. 516, 152 L.Ed.2d 12 (2002). "[T]hose remedies need not meet federal standards, nor must they be `plain, speedy, and effective.'" Id. at 998 (citing Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)).
Judge Ellis determined that Plaintiff's letter was treated by DOCS officials as a grievance. (Report at 9.) Judge Ellis based this finding, in part, on the erroneous conclusion that a hearing was held on October 31, 1996, concerning Plaintiff's letter. (Id.) Defendant and Plaintiff agree that the October 31, 1996 hearing concerned another inmate's grievance. (Def.'s Reply at 4; Pl.'s Objections at 10.)
Plaintiff argues that the failure of the Inmate Grievance Resolution Committee ("IGRC") to render a decision on his April 16, 2002 letter precluded him from appealing to the CORC. The record reveals, however, that inmates may appeal to the next level matters that are not decided within time limits provided in the DOCS Directive for the Inmate Grievance Program. (See Eagen Aff. Ex. A at 9, § VI (G).) The IRGC's failure to respond thus neither prevented Plaintiff from pursuing an appeal nor relieved him of the obligation to do so. See Porter, 122 S.Ct. at 987 (inmate must exhaust administrative remedies even if no relief is available through the grievance process).
IGRC representatives have up to seven working days to review a grievance and resolve it informally. (See Eagen Aff. Ex. A at 4.) If there is no such resolution, the IGRC hears the complaint and may make recommendations. (Id. at 5.) A hearing, if necessary, takes place within seven working days after the IGRC receives the grievance. The IRGC must provide a decision and its reasons to the grievant within two working days. (Id.)
Plaintiff argues, alternatively, that filing a grievance would have been futile because the administrative grievance process is biased against him. Plaintiff has proffered no evidence to support this conclusory allegation. Plaintiff is not excused from the requirement that he exhaust administrative remedies simply because he views the process as ineffective. See Booth, 121 S.Ct. at 1824-25 and n. 5.
Plaintiff further objects to Judge Ellis's determination that his arguments in opposition to Defendant's motion for summary judgment raise a due process claim concerning his right to dispose of the confiscated material that was not raised in his original complaint. After reviewing the record, the Court finds that original complaint does not raise a claim concerning Plaintiff's right to dispose of the confiscated material but concerns, rather, only the DOC's policy of banning the confiscated material. (See Complaint, Ex. 1 to Pl.'s Objections.) Plaintiff does not object to the Report's determination that his due process claim, nonetheless, lacks merit because Plaintiff did not avail himself of the adequate compensatory remedy provided by the state. (Report at 9.) Having reviewed de novo the Report's finding that Plaintiff did not raise the due process claim in his Complaint, the Court finds that there is no basis for rejecting Judge Ellis' determination of this issue.
Plaintiff contends, in addition, that the Report erroneously attributes the filing of a grievance in August 1996, as well as other grievances relating to the Five Percenters, to him and requests that the Court determine the identity of the actual complainants. This information is irrelevant to the Court's determination that Plaintiff failed to exhaust administrative remedies in connection with matters underlying the instant case; therefore, any error relating to the identity of complainants in other matters provides no basis for rejection of the Report's substantive conclusion.
In his objections, Plaintiff reiterates his original argument that his claim is non-grievable because it concerns prison discipline. While the Court reviews de novo aspects of the Report to which objections are filed, objections that simply reiterate original arguments are reviewed for clear error. See Camardo, 806 F. Supp. at 382. The Report directly addresses Plaintiff's prison discipline argument and, whether reviewed for clear error or de novo, Plaintiff's objection does not provide any basis for deviation from Judge Ellis' conclusion that Plaintiff's claim was grievable for the reasons explained in the Report.
Plaintiff argues further that the Report fails to instruct him as to how to pursue his claim in the administrative process. It would be inappropriate for this Court to seek to guide Plaintiff in this regard. See generally, Lewis v. Casey, 518 U.S. 343, 361-62 (1996) (courts should defer to prison officials' daily administration of prison problems); Porter, 122 S.Ct. at 988 (correction officials should be given the opportunity to address complaints internally). Plaintiff also requests that the Court order Defendant to assign a log number to his complaint. Again, it is not for the Court to instruct Defendant in this manner. This administrative detail will be left to prison officials.
Plaintiff contends, additionally, that Defendant's failure to refer his April 16, 2002 letter to the Media Review Committee ("MRC") deprived him of his First and Fourteenth Amendment rights. The Report addresses this issue and Plaintiff raises no argument in this regard that was not previously presented. As noted in the Report, Plaintiff's letter was not forwarded to MRC because DOCS officials treated it as grievable. (Report at 9.) The Court finds no clear error in Judge Ellis' determination.
Plaintiff also argues that he should not be required to wait for the administrative process to resolve his claim. The law is clear, however, that administrative remedies do not have to be "speedy and effective" to trigger the exhaustion requirement. Booth, 532 U.S. at 732.
Finally, Plaintiff has interposed a "Supplement to my August 10, 2001 Objections" concerning the grant of qualified immunity to former defendants Cochran, Keane, and Jackson in the Court's September 12, 2000 Order adopting Judge Ellis' June 28, 2000 report. Plaintiff's failure to file a timely objection to the June 28, 2000 report constituted a waiver of further judicial review of that decision. Plaintiff was notified of the objection deadline: the June 28, 2000 report warned that "[f]ailure to file timely objections constitute a waiver of those objections in both the District Court and on later appeal to the United States Court of Appeals." (June 28, 2000 Report at 2.). See Small v. Sec'ty of Health and Human Services, 892, F.2d 15, 16 (2d Cir. 1989) (pro se Plaintiff's failure to raise objections to magistrate report only constitutes waiver when the magistrate report explicitly states that such waiver will result in loss of appeal rights).
For the foregoing reasons, Judge Ellis' Report, which is set forth in full below, is adopted in its entirety. Defendant's Motion for Summary Judgment is granted and the case is dismissed without prejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.