Garvey v. Childtime Learning Center

Filing 16

DECISION AND ORDER adopting 14 Report and Recommendations. This action is dismissed with prejudice for failure to state a claim. Signed by Senior Judge Thomas J. McAvoy on 6/9/17. (Copy served via regular and certified mail)(sfp, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ SHAUN P. GARVEY, Plaintiff, v 5:16-CV-1073 (TJM/ATB) CHILDTIME LEARNING CENTER, Defendant. ________________________________________ THOMAS J. McAVOY, Senior United States District Judge DECISION & ORDER I. INTRODUCTION This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) . In his April 21, 2017 Order and Report-Recommendation, Magistrate Judge Baxter reviewed plaintiff’s second amended complaint (“2nd AC”)[dkt. # 13] pursuant to 28 U.S.C. § 1915 a nd recommended that the action be dismissed with prejudice for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Dkt. # 14. Plaintiff failed to file timely objections. Although plaintiff filed late objections, Dkt. # 15, he fails to provide a sufficient excuse for this late filing. II. DISCUSSION The Court presumes familiarity with the procedural history of this case, including Magistrate Judge Baxter’s two previous Order and Report-Recommendations, Dkt. # 5 & Dkt. # 9, and the Court’s two previous decisions on these Order and Report- 1 Recommendations. Dkt. # 8 & Dkt. # 12. Because Plaintiff failed to timely file objections or offer a sufficient excuse for his late filed objections,1 the Court treats the April 21, 2017 Order and ReportRecommendation as unopposed. Doing so, and after examining the record, the Court finds that the April 21, 2017 Order and Report-Recom mendation is not subject to attack for plain error or manifest injustice. Even when considering plaintiff’s late objections and conducting a de novo review of the issues raised by the objections, the Court accepts and adopts Magistrate Judge Baxter’s recommendations for the reasons stated in his report. III. CONCLUSION For the reasons discussed above, the Court accepts and adopts Magistrate Judge Baxter’s April 21, 2017 Order and Report-Recommendation (Dkt. # 14) in its entirety. Accordingly, this action is DISMISSED with prejudice for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). IT IS SO ORDERED. Dated:June 9, 2017 1 Plaintiff merely contends that he “sent the paperwork for objection to the wrong mailing address,” but he neither indicates the address his objections were purportedly sent nor provides proof (such as an envelop stamped as returned by the U.S. Postal Service or an affidavit setting forth details of this allegedly mistaken mailing) supporting his contention. 2

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