Opinion
9:15-CV-1489 (BKS/ATB)
01-12-2017
JOHN H. WHITE, Plaintiff, v. JOHN TATRO, NYS DOCCS Lieutenant, Defendant.
Appearances: John H. White 08-A-3366 Southport Correctional Facility P.O. Box 2000 Pine City, NY 14871 Plaintiff, pro se Colleen D. Galligan, AAG Hon. Eric T. Schneiderman Office of New York State Attorney General The Capitol Albany, NY 12224 Attorney for Defendant
Appearances:
John H. White
08-A-3366
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871
Plaintiff, pro se Colleen D. Galligan, AAG
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendant Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se John H. White brought this action under 42 U.S.C. § 1983 alleging that Defendant John Tatro violated Plaintiff's Fourteenth Amendment due process rights during a disciplinary hearing presided over by Defendant. Dkt. No. 1. On May 5, 2016, Defendant filed a motion to revoke Plaintiff's in forma pauperis status under 28 U.S.C. § 1915(g), and to conditionally dismiss the complaint. Dkt. No. 19. After being given three extensions of time, Plaintiff failed to file a response to the motion. Plaintiff did however, file what has been construed by the Court as a motion for injunctive relief, related to his trouble getting "legal supplies," and a later submission in support of that motion. Dkt. No. 35, 37. Defendant filed a letter opposing Plaintiff's motion for injunctive relief. Dkt. No. 36.
This matter was referred to United States Magistrate Judge Andrew T. Baxter who, on November 28, 2016, issued a Report-Recommendation recommending that Defendant's motion be granted and that Plaintiff's motion for injunctive relief be denied. Dkt. No. 38. On December 16, 2016, Plaintiff filed a letter directed to Magistrate Judge Baxter complaining about his access to supplies. Dkt. No. 39. Plaintiff did not file any other response to the Report-Recommendation.
Although the letter is dated November 9, 2016, and appears to be sworn to on November 15, 2016, before the November 28th Report-Recommendation, the letter is postmarked on December 14, 2016. Dkt. No. 39. Since Plaintiff did not file any other response to the Report-Recommendation, the Court has considered his letter as an objection to the Report-Recommendation. --------
This Court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id. Since Plaintiff has not objected to Magistrate Judge Baxter's recommendation that Defendant's motion be granted, the Court has reviewed that recommendation for clear error. The Court has considered the letter Plaintiff filed on December 16, 2016, as an objection to the recommendation that Plaintiff's motion for an injunction be denied, and has reviewed that recommendation de novo. The Court rejects the arguments in Plaintiff's letter for the reasons set forth in the Report-Recommendation. Dkt. No. 38, p. 8. Having reviewed the Report-Recommendation regarding Defendant's motion for clear error and the Report-Recommendation regarding Plaintiff's motion de novo, the Court finds no error, and adopts the Report-Recommendation in its entirety for the reasons stated therein.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 38) is ADOPTED in its entirety; and it is further
ORDERED that Defendant's motion to revoke Plaintiff's in forma pauperis status and conditionally dismiss the complaint (Dkt. No. 19) is GRANTED; and it is further
ORDERED that Plaintiff's case be DISMISSED without further order unless he pays the entire filing fee of $350.00 within thirty (30) days of the date of this Order, and it is further
ORDERED that Plaintiff's motion for injunctive relief (Dkt. Nos. 35, 37) is DENIED; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: January 12, 2017
/s/_________
Brenda K. Sannes
U.S. District Judge