Opinion
12 Civ. 8162 (PAC)(DF)
07-29-2014
LEON MARTIN, JR., Plaintiff, v. DR. KEVIN McGRAW, ROSEANN GALAGAN, R.N., JASON BERGER, L.P.N., CORRECTIONAL MEDICAL CARE, CARL E. DUBOIS, ORANGE COUNTY SHERIFF, and ORANGE COUNTY CORRECTIONAL FACILITY, individually and in their official capacities, Defendants.
ORDER ADOPTING REPORT & RECOMMENDATION :
Pro se Plaintiff Leon Martin brought this action under 42 U.S.C. § 1983, alleging that Defendants denied him constitutionally adequate care with respect to a tooth extraction while he was a pre-trial detainee at the Orange County Correctional Facility. Defendants moved to dismiss Plaintiff's Second Amended Complaint under Rule 12(b)(6) for failure to state a claim.
Although Plaintiff requested and received two extensions to respond to the motions to dismiss, he never responded to the motion. On May 9, 2014, Magistrate Judge Debra Freeman entered an order for Plaintiff to show cause why the case should not be dismissed for his failure to prosecute. Plaintiff also failed to respond to that order and failed to notify the Court of his new address after his apparent release from custody.
The extended deadline for Plaintiff's response was March 3, 2014.
Therefore, on June 18, 2014, Magistrate Judge Freeman issued a Report and Recommendation ("R&R") that the Court dismiss the action sua sponte for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b). The R&R further recommends that, in light of Plaintiff's pro se status, the dismissal be without prejudice.
"Within 14 days after being served with a copy of [an R&R], a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. § 636(b)(1). A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "The district court may adopt those portions of the report to which no timely objection has been made, so long as there is no clear error on the face of the record." Feehan v. Feehan, No. 09-CV-7016, 2011 WL 497776 at *1 (S.D.N.Y. Feb. 10, 2011). Plaintiff has not objected to the R&R, which was issued more than one month ago.
The Court has reviewed the record and finds no clear error. Therefore, the Court adopts Magistrate Judge Freeman's R&R in its entirety, and this action is DISMISSED without prejudice. The Clerk of Court is directed to terminate the pending motions and to close this case. Pursuant to 28 U.S.C. § 1915(a)(3), the Court finds that any appeal from this order would not be taken in good faith. Dated: New York, New York
July 29, 2014
SO ORDERED
/s/_________
PAUL A. CROTTY
United States District Judge
Copy mailed by chambers to:
Mr. Leon Martin, Jr.
13-A-1708
Hale Creek A.S.A.T.C.A.
P.O. Box 950
Johnstown, NY 12095-0950
Mr. Leon Martin, Jr.
569 Broadway
Monticello, NY 12701