Opinion
9:16-CV-1107 (GTS/DJS)
01-31-2019
LAMONT GOUGH, Plaintiff, v. SERGEANT MORRIS, Coxsackie Corr. Fac.; SERGEANT DAVIDSON, Coxsackie Corr. Fac.; JOHN DOE #1, Officer, Coxsackie Corr. Fac.; JOHN DOE #2, Officer, Coxsackie Corr. Fac.; and JOHN DOE #3, Officer, Coxsackie Corr. Fac., Defendants.
APPEARANCES: LAMONT GOUGH Plaintiff, Pro Se Coxsackie Correctional Facility P.O. Box 999 Coxsackie, New York 12051 HON. LETITIA JAMES Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: WILLIAM A. SCOTT, ESQ. Assistant Attorney General
APPEARANCES: LAMONT GOUGH
Plaintiff, Pro Se
Coxsackie Correctional Facility
P.O. Box 999
Coxsackie, New York 12051 HON. LETITIA JAMES
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: WILLIAM A. SCOTT, ESQ.
Assistant Attorney General GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Lamont Gough ("Plaintiff") against the five above-captioned employees of the New York State Department of Corrections and Community Supervision ("Defendants") pursuant to 42 U.S.C. § 1983, is the Report-Recommendation of United States Magistrate Judge Daniel J. Stewart recommending that Defendants Morris and Davidson's motion for summary judgment be granted, that the Court dismiss Plaintiff's claims against those two Defendants for failure to exhaust his available administrative remedies, and that the Court sua sponte dismiss Plaintiff's remaining claims against the three John Doe Defendants for (1) failure to comply with a Court Order and/or to prosecute this action under Fed. R. Civ. P. 41(b) and N.D.N.Y. L.R. 41.2(a), (2) failure to serve under Fed. R. Civ. P. 4(m), and/or (3) failure to exhaust his available administrative remedies. (Dkt. No. 53.) None of the parties have filed objections to the Report-Recommendation, and the deadline in which to do so has expired. (See generally Docket Sheet.) After carefully reviewing the relevant papers herein, including Magistrate Judge Stewart's thorough Report-Recommendation, the Court can find no clear-error in the Report-Recommendation: Magistrate Judge Stewart 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: Defendants Morris and Davidson's motion for summary judgment is granted; Plaintiff's claims against those two Defendants are dismissed for failure to exhaust his available administrative remedies; and Plaintiff's remaining claims against the three John Doe Defendants are sua sponte dismissed for (1) failure comply with a Court Order and/or to prosecute this action, (2) failure to serve and/or (3) failure to exhaust his available administrative remedies.
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 Stewart's Report-Recommendation (Dkt. No. 53) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants Morris and Davidson's motion for summary judgment (Dkt. No. 47) is GRANTED ; and it is further
ORDERED that Plaintiff's claims against Defendants Morris and Davidson are DISMISSED for failure to exhaust his available administrative remedies; and it is further
ORDERED that Plaintiff's remaining claims against the three John Doe Defendants are sua sponte DISMISSED for (1) failure to comply with a Court Order and/or to prosecute this action under Fed. R. Civ. P. 41(b) and N.D.N.Y. L.R. 41.2(a), (2) failure to serve under Fed. R. Civ. P. 4(m), and/or (3) failure to exhaust his available administrative remedies; and it is further
ORDERED that the Clerk of the Court shall enter Judgment for Defendants and close this action.
The Court certifies that an appeal from this Decision and Order would not be taken in good faith. Dated: January 31, 2019
Syracuse, New York
/s/_________
Hon. Glenn T. Suddaby
Chief U.S. District Judge