Liberta v. Smith

Filing 21

MEMORANDUM-DECISON AND ORDER: ORDERED that the Report-Recommendation (Dkt. No. 20 ) is ADOPTED in its entirety. ORDERED that this action is DISMISSED without prejudice for lack of subject matter jurisdiction. ORDERED that Plaintiff's pending motion for default judgment (Dkt. No. [15}) is DENIED as moot. Signed by Judge Brenda K. Sannes on 9/29/17. {order served via regular and certified mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
QUINTINO D. LIBERTA,
Plaintiff,
v.

6:17-CV-214 (BKS/TWD)

MICHAEL S. SMITH,
Defendant.
________________________________________________
Appearances:
Quintino D. Liberta
Rome, NY
Plaintiff, pro se
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Quintino D. Liberta, a corrections officer employed by the Oneida County
Sheriff’s Office commenced this 42 U.S.C. § 1983 action against Defendant Michael S. Smith
who, according to the Complaint, is an inmate at the Oneida County Correctional Facility. Dkt.
No. 1. On July 10, 2017, Plaintiff filed a motion for default judgment. Dkt. No. 15. On July 28,
2017, the Court issued an Order directing that the action be dismissed for lack of subject matter
jurisdiction unless Plaintiff files an amended complaint setting for a basis for subject matter
jurisdiction. Dkt. No. 18. Plaintiff filed an amended complaint on August 23, 2017. Dkt. No.
19. The case was referred to United States Magistrate Judge Thérèse Wiley Dancks, who
reviewed the amended complaint and, on September 5, 2017, issued an Order and ReportRecommendation recommending that this action be dismissed for lack of subject matter
jurisdiction. Dkt. No. 20. Magistrate Judge Dancks advised the Plaintiff that under 28 U.S.C. §

636(b)(1), he had fourteen days within which to file written objections to the report, and that the
failure to object to the report within fourteen days would preclude appellate review. Dkt. No. 20,
pp. 4-5. No objections to the Report-Recommendation have been filed.
As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear
error and found none, the Court adopts the Report-Recommendation, including the
recommendation that the Court decline to exercise supplemental jurisdiction over the state law
claims (Dkt. No. 20, at 4 n.2), see Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988) (“in the usual case in which all federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the
remaining state-law claims”), in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 20) is ADOPTED in its
entirety; and it is further
ORDERED that this action is DISMISSED without prejudice for lack of subject matter
jurisdiction; and it is further
ORDERED that Plaintiff’s pending motion for default judgment (Dkt. No. 15) is
DENIED as moot; and it is further
ORDERED that the Clerk serve a copy of this Order upon the plaintiff in accordance
with the Local Rules.

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IT IS SO ORDERED.
Date: September 29, 2017
Syracuse, New York

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