9:25-cv-00153•Burnett v. Coppola et al
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- 1 - 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 Case 9:25-cv-00153-DNH-ML Document 54 Filed 05/27/26 Page 1 of 2
- 2 - 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
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