Opinion
1:21-CV-0319 (GTS/ML)
07-19-2021
RONDUE GENTRY, Plaintiff, v. STATE OF NEW YORK; KYLE FILLI; DAVID HURLEY; HEATH McCRINDLE; STEVEN SHARP; and DAVID SOARES, Defendants.
RONDUE GENTRY, 18-A-1238 Plaintiff, Pro Se, Lakeview Shock Incarceration Correctional Facility.
APPEARANCES:
RONDUE GENTRY, 18-A-1238 Plaintiff, Pro Se, Lakeview Shock Incarceration Correctional Facility.
DECISION AND ORDER
GLENN T. SUDDABY, Chief United States District Judge
Currently before the Court, in this pro se civil rights action filed by Rondue Gentry (“Plaintiff”) against the State of New York, New York State Police Officers Kyle Filli, David Hurley and Heath McCrindle, Assistant District Attorney Steven Sharp, and Albany County District Attorney David Soares (“Defendants”), is United States Magistrate Judge Miroslav Lovric's Report-Recommendation recommending that certain of Plaintiff's claims be dismissed with prejudice (and without prior leave to amend), certain of those claims be dismissed without prejudice (and with limited leave to amend in this action), and the remainder of those claims survive the Court's sua sponte review of his Complaint. (Dkt. No. 7.) Plaintiff has not filed an Objection to the Report-Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein, including Magistrate Judge Lovric's thorough Report-Recommendation, the Court can find no clear error in the Report-Recommendation. Magistrate Judge Lovric employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein.
When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear-error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a clear-error review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Lovric's Report-Recommendation (Dkt. No.7) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the following claims are DISMISSED with prejudice and without prior leave to amend: (1) Plaintiff's claims against the State of New York; (2) Plaintiff's claims against Defendants Filli, Hurley, and McCrindle in their official capacities; and (3) Plaintiff's claims against Defendants Sharp and Soares in their official and individual capacities; and it is further
ORDERED that the following claims are DISMISSED without prejudice to repleading during the pendency of this action and with leave to amend within THIRTY (30) DAYS of the date of this Decision and Order: (1) Plaintiff's fabrication-of-evidence claims against Defendants Filli, Hurley and McCrindle in their individual capacities to the extent that those claims relate to the case against Plaintiff in the Town of Guilderland; (2) Plaintiff's false arrest claims against Defendants Filli and Hurley in their individual capacities; (3) Plaintiff's claim for a Miranda violation against Defendant McCrindle in his individual capacity; and it is further
ORDERED that SURVIVING this Decision and Order are Plaintiff's fabrication-of-evidence claims against Defendants Filli, Hurley and McCrindle in their individual capacities to the extent that those claims relate to the case against Plaintiff in the City of Albany; and it is further
ORDERED that the Clerk of Court is directed to issue Summonses and forward, along with copies of the Complaint, to the U.S. Marshal for service upon Defendants Filli, Hurley and McCrindle, and those Defendants are directed to respond in accordance with the Federal Rules of Civil Procedure.