Summary
concluding that the plaintiff was not excused from exhausting available administrative remedies even where the plaintiff alleged in his complaint that he did not file a grievance because he was "'afraid of retaliation'" and he stated in opposition to the defendants' motion for summary judgment that "he had a 'legitimate fear' of retaliation because of his substantive claim is one for retaliation"
Summary of this case from Kendale Judge v. GibsonOpinion
9:06-CV-902 (LEK/GJD).
September 24, 2007
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on August 29, 2007 by the Honorable Gustave J. DiBianco, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 15). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Tony Harrison, which were filed on September 6, 2007. Objections (Dkt. No. 16).
It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved for the reasons stated therein.
Accordingly, it is hereby
ORDERED, that the Report-Recommendation (Dkt. No. 15) is APPROVED and ADOPTED in its ENTIRETY; and it is further
ORDERED, that Defendants' Motion to dismiss (Dkt. No. 12) is GRANTED; and it is further
ORDERED, that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED IN ITS ENTIRETY; and it is further
ORDERED, that Plaintiff's Motion for a temporary restraining order (Dkt. No. 16) is DENIED AS MOOT; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.