Summary
holding that it would be unfair to allow the plaintiff to voluntarily withdraw because the defendants filed a summary judgment motion supported by numerous affidavits and exhibits
Summary of this case from Mercer v. SullivanOpinion
9:13-CV-952 (BKS/ATB)
07-16-2015
EDGARDO L. LOPEZ, Plaintiff, v. N. WHITMORE, et. al., Defendants.
APPEARANCES: Edgardo L. Lopez, Pro Se Last Known Address Syracuse, NY 13202 Hon. Eric T. Schneiderman New York State Attorney General Christopher W. Hall, Assistant Attorney General The Capitol Albany, NY 12224-0341 For Defendants
APPEARANCES:
Edgardo L. Lopez, Pro Se
Last Known Address
Syracuse, NY 13202
Hon. Eric T. Schneiderman
New York State Attorney General
Christopher W. Hall, Assistant Attorney General
The Capitol
Albany, NY 12224-0341
For Defendants
Hon. Brenda K. Sannes, United States District Court Judge
ORDER
Plaintiff Edgardo L. Lopez, a former New York State inmate, commenced this civil rights action under 42 U.S.C. § 1983 raising federal and state claims against New York State Department of Correction officials arising out of plaintiff's confinement at Marcy Correctional Facility. Dkt. Nos. 1, 32. On October 9, 2014, defendants filed a motion for summary judgment which was referred to United States Magistrate Judge Andrew T. Baxter. Dkt. Nos. 69, 83. On May 20, 2015, Judge Baxter issued a Report-Recommendation, recommending that defendants' motion for summary judgment be granted, and that plaintiff's First Amendment and Eighth Amendment claims be dismissed without prejudice to refiling and that plaintiff's due process and state law claims be dismissed with prejudice. Dkt. No. 83, p. 24. Judge Baxter advised the parties that:
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72.Dkt. No. 83, p. 24. A copy of the Report-Recommendation was mailed to Lopez's last known address via certified mail. Dkt. No. 83. Lopez's copy of the Report-Recommendation was returned to the Court marked "Return to sender, unable to forward." Dkt. No. 85.
On June 8, 2015, Lopez filed a notice of change of address and a request for an extension of time to respond to the Report-Recommendation. Dkt. Nos. 86-87. Lopez noted that he received the Report-Recommendation that day at the public counter in the courthouse. Dkt. No. 87. The Court granted Lopez's request for an extension of time and, in a text order dated June 8, 2015, extended the due date for filing objections to June 22, 2015. The text order was mailed to Lopez's last known address. Lopez's copy of the text order was returned to the Court marked "Return to sender, not deliverable as addressed, unable to forward." Dkt. No. 89.
In a Decision and Order on June 29, 2015, the Court reminded Lopez of his obligation to notify the Court of any change in address, see Local Rule 10.1(c)(2), and provided Lopez an additional fourteen days to file his current address and any objections to the Report and Recommendation. Dkt. No. 90, pp. 2-4. The Court advised Lopez that if he failed to comply with the Decision and Order, the Court would "consider the Report and Recommendation as unopposed and review for clear error only." Dkt. No. 90, p. 4. The Decision and Order was served on Lopez via certified mail at his last known address. Dkt. No. 90. On July 8, 2015, the Court received an executed return receipt of delivery. Dkt. 91. Lopez has not, to date, filed any objections to the Report-Recommendation.
Accordingly, as no objections to the Report-Recommendation have been filed and the time for filing objections has expired, the Court reviews the Report-Recommendation for clear error. See Glaspie v. N.Y.C. Dep't of Corr., No. 10 CV 00188(GBD)(JCF), 2010 WL 4967844, at *1, 2010 U.S. Dist. LEXIS 131629, at *2-3 (S.D.N.Y. Nov. 30, 2010) (explaining that when no objections to report and recommendation are made, "the Court may adopt [it] if there is 'no clear error on the face of the record.'") (quoting Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005)). Having reviewed the Report and Recommendation in its entirety and having found no clear error, it is hereby:
ORDERED that the Report-Recommendation (Dkt. No. 83) is ADOPTED in its entirety for the reasons stated therein; and it is further
ORDERED that the defendants' motion for summary judgment (Dkt. No. 69) is GRANTED; and it is further
ORDERED that plaintiff's due process and state law claims are DISMISSED with prejudice; and it is further
ORDERED that plaintiff's remaining claims under 42 U.S.C. § 1983 relating to assault and retaliation are DISMISSED without prejudice to refiling; and it is further
ORDERED that the Clerk of the Court shall close this case; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order as well as the Report-Recommendation (Dkt. No. 83) upon all parties in accordance with the local rules.
IT IS SO ORDERED. Dated: July 16, 2015
Syracuse, New York
/s/ _________
Brenda K. Sannes
U.S. District Judge