Burnett v. Coppola et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
TONY BURNETT,
Plaintiff,
-v- 	9:25-CV-153 (DNH/ML)
COPPOLA et al.,
Defendants.
_____________________________________
Hon. David N. Hurd, U.S. District Judge:
ORDER ON REPORT & RECOMMENDATION
On January 13, 2025, pro se plaintiff Tony Burnett (“plaintiff”), an individual in the cus-
tody of the New York State Department of Corrections and Community Supervision (“DOCCS”),
filed this 42 U.S.C. § 1983 action alleging that defendants violated his civil rights while he was
confined at Marcy Correctional Facility. 	See Dkt. No. 2. 	Along with his complaint, plaintiff
moved for leave to proceed in forma pauperis (“IFP Application”). Dkt. No. 1.
Plaintiff initially filed this action in the U.S. District Court for the Southern District of New
York. See Dkt. No. 3. However, because the events alleged occurred in the Northern District of
New York, the matter was sua sponte transferred to this judicial district. Dkt. No. 5. Thereafter,
U.S. Magistrate Judge Miroslav Lovric granted plaintiff’s IFP Application and, after conducting
an initial review of the complaint, concluded that plaintiff’s § 1983 Eighth Amendment claims for
excessive force required a response from defendants Coppola, Gentile, Kieffer, Galliher, and
Shaw. 	Dkt. No. 10. Defendant Galliher answered, Dkt. No. 38, defendants Coppola and Shaw
moved for pre-answer summary judgment, Dkt. No. 34, and defendants Gentile and Kieffer have
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not appeared to defend themselves yet, see Dkt. No. 28. 	Plaintiff opposed the motion for pre-
answer summary judgment, Dkt. No. 49, which has been fully briefed, Dkt. No. 52.
On May 5, 2026, Judge Lovric advised by Report & Recommendation (“R&R”) that Cop-
pola and Shaw’s motion for summary judgment be granted and that plaintiff’s complaint be sua
sponte dismissed with prejudice as to the remaining defendants. Dkt. No. 53. As Judge Lovric
explained, plaintiff had failed to exhaust his available administrative remedies (and in fact, con-
ceded as much in his paperwork). 	Id. at 15 (quoting Dkt. No. 49 at 7). 	Further, Judge Lovric
determined that plaintiff’s filings and other submissions had failed to meaningfully suggest that
the grievance procedure was “unavailable” under the governing precedent. See Dkt. No. 53.
Neither plaintiff nor defendants have lodged objections, and the time period in which to do
so has expired. See Dkt. No. 53. Upon review for clear error, the R&R is accepted and will be
adopted. See FED. R. C IV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 53) is ACCEPTED;
2. Defendants’ motion for summary judgment (Dkt. No. 34) is GRANTED; and
3. Plaintiff’s complaint (Dkt. No. 2) is sua sponte DISMISSED with prejudice for failure
to exhaust available administrative remedies.
The Clerk of the Court is directed to terminate the pending motions, enter a judgment ac-
cordingly, and close the file.
IT IS SO ORDERED.
Dated: May 27, 2026
Utica, New York.
Case 9:25-cv-00153-DNH-ML Document 54 Filed 05/27/26 Page 2 of 2