Summary
holding that “a pro se plaintiff's papers in opposition to a motion to dismiss may sometimes be read as effectively amending a pleading (e.g., if the allegations in those papers are consistent with those in the pleading). However, a pro se plaintiff's papers in opposition to a motion for summary judgment may not be so read, in large part due to prejudice that would inure to the defendants through having the pleading changed after discovery has occurred and they have gone through the expense of filing a motion for summary judgment”
Summary of this case from Walker v. ArtusOpinion
9:03-CV-1010 (DNH/GLS).
June 20, 2008
JAMES MURRAY, 95-A-4417, Plaintiff Pro Se, Upstate Correctional Facility, Malone, New York.
HON. ANDREW M. CUOMO, Attorney General of the, State of New York, Attorney for Defendants, Department of Law, The Capitol, Albany, New York.
DAVID N. HURD, United States District Judge.
JAMES SEAMAN, ESQ., Asst. Attorney General.
ORDER
Plaintiff, James Murray, brought this civil rights action pursuant to 42 U.S.C. § 1983. In a 51 page Report Recommendation dated February 11, 2008, the Honorable George H. Lowe, United States Magistrate Judge, recommended that defendants' motion for summary judgment be granted in part (i.e., to the extent that it requests the dismissal with prejudice of plaintiff's claims against defendant Paolano and Nesmith); and denied in part (i.e., to the extent that it requests dismissal of plaintiff's claims against the remaining defendants on the grounds of plaintiff's failure to exhaust available administrative remedies) for the reasons stated in the Report Recommendation. Lengthy objections to the Report Recommendation have been filed by the plaintiff.
Based upon a de novo review of the portions of the Report-Recommendation to which the plaintiff has objected, the Report-Recommendation is accepted and adopted. See 28 U.S.C. 636(b)(1).
Accordingly, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED in part and DENIED in part;
2. Plaintiff's complaint against defendants Paolano and Nesmith is DISMISSED with prejudice;
3. Defendants' motion for summary judgment is DENIED, to the extent that their request for dismissal of plaintiff's assault claims under the Eighth Amendment against the remaining defendants on the grounds of plaintiff's failure to exhaust available administrative remedies as stated in the Report-Recommendation.
IT IS SO ORDERED.