The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
JABBAR A. BROWN,
Plaintiff,
DECISION AND ORDER
v. 16-CV-147
LATASHA JOHNSON,
Defendant.
______________________________________
This prisoner’s civil rights case filed by Plaintiff Jabbar A. Brown was referred to
Magistrate Judge Jeremiah J. McCarthy pursuant to 28 U.S.C. ' 636(b)(1) for the
performance of pretrial proceedings. Plaintiff Brown’s remaining causes of action1
allege excessive use of force and failure to protect claims against Defendant Latasha
Johnson.
Defendant Johnson moved for summary judgment pursuant to Federal Rule of
Civil Procedure 56 (Dkt. 74), and on April 9, 2020, the Magistrate Judge filed a Report
and Recommendation (Dkt. 84) recommending that the Court grant the motion for
summary judgment.
On April 23, 2020, Plaintiff Brown filed objections to the Report and
Recommendation. Dkt. 85, 90 (under seal). Defendant Johnson responded (Dkt. 91) and
1 Plaintiff’s conspiracy, retaliation, and failure to train claims, as well as all defendants other
than Defendant Johnson, were previously dismissed. See this Court’s August 4, 2017 Order (Dkt.
18).
Plaintiff Brown replied (Dkt. 93 [redacted], 95 [under seal]). Oral argument on the
objections took place on February 2, 2022.
The Court reviews the findings and conclusions of the Report and
Recommendation pursuant to 28 U.S.C. ' 636(b)(1). To the extent that a party makes a
timely and specific objection to a Magistrate Judge's Report and Recommendation, the
standard of review is de novo. Id.
Upon due consideration of the arguments, the Court adopts the conclusion of the
Report and Recommendation that Plaintiff Brown failed to exhaust his administrative
remedies as required by 42 U.S.C. § 1997e(a), and grants Defendant Johnson’s motion
for summary judgment. The Court adopts the reasoning of the Magistrate Judge in the
Report and Recommendation.
The Court also finds that neither Percinthe v. Julien, 2009 U.S. Dist. LEXIS
64552 (S.D.N.Y. 2009) nor Espinal v. Goord, 558 F.3d 119 (2d Cir. 2009) provide
support for Plaintiff Brown’s argument that because an issue of fact exists regarding
whether his February 3, 2015 complaint was involved in the investigation of his February
18, 2015 grievance, it is possible that he did exhaust his administrative remedies. Both
cited cases indicate that any claim related to, but extraneous from, the grievance must
have been specifically addressed in the denial of the grievance in order to satisfy the
administrative exhaustion requirement. That did not occur here. See Dkt. 77-9.
Accordingly, it is hereby
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ORDERED, that pursuant to 28 U.S.C. ' 636(b)(1), and for the reasons set forth
in the Report and Recommendation (Dkt. 84) and this Decision and Order, Defendant
Johnson’s motion for summary judgment (Dkt. 74) pursuant to Federal Rule of Civil
Procedure 56 is granted. The Clerk of Court shall enter Judgment in favor of the
Defendant Johnson and shall take all steps necessary to close the case.
Further, the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this Order would not be taken in good faith, and leave to appeal to the Court
of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962).
Any request to proceed on appeal as a poor person should be directed, on motion, to the
United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the
Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
_s/Richard J. Arcara__________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: February 23, 2022
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