Engles v. Souza, 9:14-CV-1185 (TJM/ATB). (2017)
Court: District Court, N.D. New York
Number: infdco20171219c71
Visitors: 13
Filed: Dec. 18, 2017
Latest Update: Dec. 18, 2017
Summary: DECISION & ORDER THOMAS J. McAVOY , Senior District Judge . This pro se civil action, brought pursuant to 42 U.S.C. 1983, alleges Defendants violated Plaintiff's constitutional rights while he was incarcerated. The matter was referred to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. 636(b) and Local Rule 72.3(c). The Report-Recommendation, dated August 22, 2017, recommends: that the Court grant Defendants' partial motion
Summary: DECISION & ORDER THOMAS J. McAVOY , Senior District Judge . This pro se civil action, brought pursuant to 42 U.S.C. 1983, alleges Defendants violated Plaintiff's constitutional rights while he was incarcerated. The matter was referred to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. 636(b) and Local Rule 72.3(c). The Report-Recommendation, dated August 22, 2017, recommends: that the Court grant Defendants' partial motion f..
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DECISION & ORDER
THOMAS J. McAVOY, Senior District Judge.
This pro se civil action, brought pursuant to 42 U.S.C. § 1983, alleges Defendants violated Plaintiff's constitutional rights while he was incarcerated. The matter was referred to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
The Report-Recommendation, dated August 22, 2017, recommends: that the Court grant Defendants' partial motion for summary judgment; that the Plaintiff's Amended Complaint be dismissed against Defendant Barber without prejudice for failure to serve; that the Amended Complaint be dismissed against Defendant Rugari only with respect to the failure-to-protect claim; and that the Amended Complaint be dismissed sua sponte with prejudice for failure to state a claim and for failure to serve as against Defendants Wiggins and Sypolt. See dkt. # 68. Plaintiff did not file objections to the Report-Recommendation and the time for filing such objections has passed.1 After examining the record, this Court has determined that the Report-Recommendation is not subject to attack for plain error or manifest injustice and the Court will accept the Report-Recommendation.
Accordingly:
1. The Court hereby ACCEPTS the Report-Recommendation of Magistrate Judge Baxter, dkt. # 68;
2. The motion for partial summary judgment filed by Defendants Siriano, Rugari, and Daugherty is hereby GRANTED;
3, The Amended Complaint is hereby DISMISSED SUA SPONTE WITHOUT PREJUDICE against Defendant Barber for failure to serve;
4. The Amended Complaint is hereby DISMISSED against Defendant Rugari on Plaintiff's failure-to-plead claim only; and
5. The Amended Complaint is hereby DISMISSED WITH PREJUDICE for against Defendants Wiggins and Sypolt failure to state a claim and failure to serve.
IT IS SO ORDERED.
FootNotes
1. Plaintiff filed two documents in response to the Report-Recommendation. See dkt. #s 69, 73. In both documents, Plaintiff argued for an extension of time to respond to the Report-Recommendation and to the underlying motion for summary judgment, even though he purported to be offering objections. The Court granted these motions. See dkt. #s 72, 74. Despite the Court providing this additional time to file proper objections, Plaintiff has not done so. The Court will therefore consider the matter as if Plaintiff failed to file objections. The result here would be the same if the Court considered Defendant's filings as objections, however. When objections to a magistrate judge's Report-Recommendation are lodged, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1). After such a review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id. Plaintiff's filings do not address the conclusions of the Magistrate Judge concerning service of the Amended Complaint, Plaintiff's failure to exhaust administrative remedies, and the lack of support for some of his claims. Instead, they describe the difficulty his housing conditions present to constructing legal filings. See dkt. #s 69, 73. Such objections do not challenge the conclusions offered by the Magistrate Judge and, if the Court were applying the standard recited above, the Court would overrule the objections and accept the Report-Recommendation for the reasons stated therein.
Source: Leagle
