Opinion
9:06-CV-562 (NAM/DRH).
September 22, 2008
WOODROW FLEMMING, 03-A-5259, Upstate Correctional Facility, Malone, NY, Plaintiff Pro Se.
HON. ANDREW M. CUOMO, Attorney General for the State of New York, DAVID L. COCHRAN, Esq., Assistant Attorney General, The Capitol, Albany, New York, Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
Plaintiff, an inmate in the custody of the New York State Department of Correctional Services, brought this action under 42 U.S.C. § 1983. Presently before the Court is plaintiff's motion for summary judgment (Dkt. No. 47). The motion was referred to United States Magistrate Judge David R. Homer pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). In a Report and Recommendation (Dkt. No. 66), Magistrate Judge Homer recommends that the motion be denied.
Within the time allocated for objections to the Report and Recommendation, plaintiff submitted a handwritten document (Dkt. No. 67) stating that he "will not oppose" the Report and Recommendation and requesting a discovery order. Plaintiff's decision not to object to the Report and Recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993). Moreover, this Court agrees with Magistrate Judge Homer's recitation of the facts and law and his recommended disposition of the motion.
PRETRIAL SCHEDULING ORDER
In order to expedite the disposition of this action and to discourage wasteful pretrial activities, the Court directs that the attorneys or parties, if appearing pro se, comply with the following procedures.
I. NON-DISPOSITIVE MOTION FILING DEADLINE
II. DISCOVERY
November 30, 2008. "Non-dispositive" motions include, but are not limited to, requests to: (i) join any person as a party to this action and (ii) amend a party's pleading. March 30, 2009 promptly2637 See
If plaintiff intends to claim damages for physical or mental injuries at trial, plaintiff must notify defendant(s) in writing of the name and address of any doctor or mental health care provider plaintiff intends to call at trial and state in writing what that witness will say about plaintiff's physical or mental condition. Failure to follow this rule will result in the loss of any right plaintiff may have to call such witness(es) at trial which may result in loss of plaintiff's ability to prove damages.
III. MOTIONS TO COMPEL
If discovery disputes cannot be resolved by the efforts of the parties, a motion may be brought pursuant to Fed.R.Civ.Proc. 37(a) and filed by April 30, 2009 .
No motion to compel discovery shall be filed unless (a) the party has made good faith efforts to resolve the issues in dispute as directed in L.R. 7.1(d) and (b) the related discovery materials accompany the motion to compel. ANY MOTIONS NOT ACCOMPANIED BY DOCUMENTATION SHOWING THAT PARTY'S EFFORTS TO RESOLVE ANY DISCOVERY DISPUTES PRIOR TO FILING A MOTION TO COMPEL WILL BE DENIED FOR FAILURE TO COMPLY WITH THIS LOCAL RULE.
IV. DISPOSITIVE MOTIONS
May 30, 2009
V. PROCEDURE FOR FILING ANY MOTION
VI. EXTENSIONS
MOTIONS THAT ARE NOT TIMELY FILED IN ACCORDANCE WITH THESE DEADLINES WILL BE DENIED AS UNTIMELY.
VII. CONSENT
If a party chooses to have all further proceedings in this matter conducted by a U.S. Magistrate Judge, the party or the party's attorney should sign the attached consent form and mail it to the Clerk. If all parties consent and the assigned District Judge concurs, all further proceedings including the trial will be conducted by a Magistrate Judge. 28 U.S.C. § 636(c).
WHEREFORE, it is hereby
ORDERED that the Report and Recommendation (Dkt. No. 66) of United States Magistrate Judge David R. Homer is accepted and adopted in its entirety; and it is further
ORDERED that plaintiff's motion (Dkt. No. 47) for summary judgment is denied without prejudice; and it is further
ORDERED, that the parties comply with this Pretrial Scheduling Order.
NOTICE OF AVAILABILITY OF A MAGISTRATE JUDGE TO EXERCISE OF JURISDICTION
In accordance with the provisions of 28 U.S.C. Section 636(c), you are hereby notified that a United States Magistrate Judge of this district court is available to exercise the court's jurisdiction and to conduct any or all proceedings in this case including a jury or non-jury trial, and entry of a final judgment. Exercise of this jurisdiction by a Magistrate Judge is, however, permitted only if all parties voluntarily consent.
You may, without adverse substantive consequences, withhold your consent, but this will prevent the court's jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned.
Your opportunity to have your case disposed of by a magistrate judge is subject to the calendar requirements of the court. Accordingly, the district judge to whom your case is assigned must approve the reference of the case to a magistrate judge for disposition.
In accordance with 28 U.S.C. § 636(c), an appeal from a judgment entered by a magistrate judge will be taken to the United States Court of Appeals for this judicial circuit in the same manner as an appeal from any other judgment of a District Court.
Copies of the consent form are available from the Clerk of the Court.
**ATTACHED FOR YOUR CONSIDERATION IS A BLANK CONSENT FORM**
CONSENT TO JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE AND ORDER OF REFERENCE
KAREEM S. PERRY, : : Plaintiff, : : v. : : 9:08-CV-625(NAM) STEVEN BULLIS; et al., : : Defendants. :