govinfo:USCOURTS-nynd-9_25-cv-00153-2

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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 ans wered, 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 plaintif f’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 re medies (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. U pon review for clear error , the R&R is accepted and will be 
adopted. See FED. R. CIV. 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. 

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