Smith v. Yando

Second Circuit

Smith v. Yando

156 F. App'x 418

CourtCourt of Appeals for the Second Circuit

DecidedDecember 2, 2005

DocketNo. 03-225

StatusPublished

This text of 156 F. App'x 418 (Smith v. Yando) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Yando, 156 F. App'x 418 (2d Cir. 2005).

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Opinion

SUMMARY ORDER

Plaintiff-appellant Smith appeals a June 18, 2003 order (Thomas J. McAvoy, Judge) adopting the magistrate judge’s recommendation in its entirety and dismissing Smith’s excessive force claims against the defendants-appellees for failure to exhaust administrative remedies. We assume familiarity with the facts and procedural history of this case. Smith does not appeal the district court’s earlier decision to dismiss his claims against the supervisory officers, and we therefore do not consider it here.

The state concedes that the district court may have been in error below, as it did not have the benefit of this court’s later decisions in Rodriguez v. Westchester County Jail, 372 F.3d 485 (2d Cir.2004), Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), and Hemphill v. New York, 380 F.3d 680 (2d Cir.2004), explaining the exhaustion requirement under the Prison [419]*419Litigation Reform Act. We agree with both sides that a remand is necessary so that the district court can consider the application of these decisions in the first instance to Smith’s claims.

For the reasons set forth above, the decision of the District Court for the Northern District of New York is hereby VACATED and REMANDED.

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SUMMARY ORDER

Plaintiff-appellant Smith appeals a June 18, 2003 order (Thomas J. McAvoy, Judge) adopting the magistrate judge’s recommendation in its entirety and dismissing Smith’s excessive force claims against the defendants-appellees for failure to exhaust administrative remedies. We assume familiarity with the facts and procedural history of this case. Smith does not appeal the district court’s earlier decision to dismiss his claims against the supervisory officers, and we therefore do not consider it here.

The state concedes that the district court may have been in error below, as it did not have the benefit of this court’s later decisions in Rodriguez v. Westchester County Jail, 372 F.3d 485 (2d Cir.2004), Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), and Hemphill v. New York, 380 F.3d 680 (2d Cir.2004), explaining the exhaustion requirement under the Prison [419]*419Litigation Reform Act. We agree with both sides that a remand is necessary so that the district court can consider the application of these decisions in the first instance to Smith’s claims.

For the reasons set forth above, the decision of the District Court for the Northern District of New York is hereby VACATED and REMANDED.

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Bluebook (online)

156 F. App'x 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-yando-ca2-2005.

Opinion

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