Foster v. New York City Probation Department et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum and Order, Magistrate Judge Azrack's Report and Recommendation issued March 7, 2013 18 is adopted in its entirety as the opinion of the court. Def endant's motion to dismiss the complaint is granted and plaintiff's claims are dismissed, with prejudice. The Clerk of the Court is respectfully requested to enter judgment in favor of defendant and against the plaintiff and to close this case. Additionally, the Clerk of the Court is respectfully requested to serve a copy of the Judgment, this Memorandum and Order, and an appeals packet on the pro se plaintiff at his last known address post-incarceration, and note service of the same on the docket. Plaintiff may file a notice of appeal of this Memorandum and Order within thirty (30) days of the date of the entry of the judgment, as specified in the appeals packet. Ordered by Judge Kiyo A. Matsumoto on 3/30/2013. (Kelley, Jamuna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
ANTHONY ANTONIO FOSTER
ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiff,
-against-

11-CV-4732(KAM)(JMA)
THE NEW YORK CITY PROBATION
DEPARTMENT and THE NEW YORK
STATE DIVISION OF PAROLE,
Defendants.
--------------------------------------- X
MATSUMOTO, United States District Judge:
On September 23, 2011, pro se plaintiff Anthony
Antonio Foster (“plaintiff”), a prisoner at the Washington
Correction Facility, initiated this civil rights action pursuant
to 42 U.S.C. § 1983 against the New York City Probation
Department and the New York State Division of Parole (the
“NYSDOP”).

(See generally ECF No. 1.)

On October 13, 2011,

plaintiff requested to proceed in forma pauperis pursuant to 28
U.S.C. § 1915.

(ECF No. 3.)

On November 28, 2011, the court

granted plaintiff’s in forma pauperis request, dismissed with
prejudice plaintiff’s claims for monetary damages against both
defendants pursuant 28 U.S.C. §§ 1915A and 1915(e)(2)(B), but
permitted plaintiff to proceed with his claim for injunctive
relief against the NYSDOP alone (hereinafter “defendant”).
No. 5, Order, dated 11/28/2011.)
Pursuant to the court’s scheduling order dated

(ECF

February 24, 2012 (see Order, dated 2/24/2012), defendant served
plaintiff with its motion to dismiss for lack of jurisdiction
and for failure to state claim, plaintiff opposed defendant’s
motion, defendant served its reply on plaintiff and then filed
the fully briefed motion via ECF on April 16, 2012.
generally ECF Nos. 13-16.)

(See

On September 5, 2012, the court

referred defendant’s fully briefed motion to dismiss to
Magistrate Judge Joan M. Azrack for a report and recommendation.
(Order Referring Motion, dated 9/5/2012.)
DISCUSSION
Presently before the court is a Report and
Recommendation issued by Magistrate Judge Azrack on March 7,
2013, recommending that the court grant defendant’s motion to
dismiss and dismiss all of plaintiff’s claims with prejudice.
(ECF No. 18, Report and Recommendation, dated 3/7/2013 (“R&R”),
at 2, 12-13.)
As explicitly noted at the end of the Report and
Recommendation, any objections to the Report and Recommendation
were to be filed within fourteen (14) days of receipt of the
Report and Recommendation.

(R&R at 12.)

Magistrate Judge

Azrack’s Report and Recommendation further directed the clerk of
court to serve a copy of the Report and Recommendation upon the
pro se plaintiff by (1) overnight mail at his last known address
post-incarceration (obtained from defendant); and (2) regular
2

mail at plaintiff’s former prison address, which is the most
recent address listed for plaintiff on the ECF filing system.
(See ECF No. 17, Plaintiff’s Notice of Change of Address, filed
7/27/2012.)

Although the copy of the Report and Recommendation

sent to plaintiff’s former prison address was returned marked
“undeliverable” because plaintiff is no longer incarcerated (see
ECF No. 20, Notice of Mail Returned As Undeliverable, filed
3/21/2013), there are no apparent issues with service of the
copy of the Report and Recommendation sent to plaintiff’s last
known address post-incarceration.

(See ECF No. 19, Clerk of

Court’s Certificate of Service, filed 3/7/2013.)

The period for

filing objections has now expired, see Fed. R. Civ. Proc. 6(d),
and no objections to Magistrate Judge Azrack’s Report and
Recommendation have been filed by either party.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

28

Where no objection to the Report and

Recommendation has been filed, the district court “need only
satisfy itself that that there is no clear error on the face of
the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)).
Upon review of Magistrate Judge Azrack’s thorough and
3

well-reasoned Report and Recommendation and the record in this
case, and considering that neither party has objected to any of
Magistrate Judge Azrack’s recommendations, the court finds no
clear error in the Report and Recommendation and hereby affirms
and adopts it as the opinion of the court.
CONCLUSION
For the foregoing reasons, defendant’s motion to
dismiss the complaint is granted and plaintiff’s claims are
dismissed, with prejudice.

The Clerk of the Court is

respectfully requested to enter judgment in favor of defendant
and against the plaintiff and to close this case.
Additionally, the Clerk of the Court is respectfully
requested to serve a copy of the Judgment, this Memorandum and
Order, and an appeals packet on the pro se plaintiff at his last
known address post-incarceration, and note service of the same
on the docket.

Plaintiff may file a notice of appeal of this

Memorandum and Order within thirty (30) days of the date of the
entry of the judgment, as specified in the appeals packet.

SO ORDERED.
Dated:

March 30, 2013
Brooklyn, New York
___/s/______ _____
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

4