Ashley v. Kramer et al

Filing 32

ORDER that 30 Report and Recommendations is REJECTED. ORDERED that 24 Motion for Summary Judgment is GRANTED. The complaint is dismissed. Signed by Judge David N. Hurd on 4/2/09.{order served via regular mail on all non-ecf parties} (nas)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------DARIUS ASHLEY, Plaintiff, vs SERGEANT KRAMER, et al. Defendants. -------------------------------APPEARANCES: DARIUS ASHLEY Plaintiff, pro se 05-A-6178 Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 OF COUNSEL: 9:07-CV-182

CORRIGIAN, McCOY LAW FIRM Attorneys for Defendants 220 Columbia Turnpike Rensselaer, NY 12144

ROBERT P. ROCHE, ESQ.

DAVID N. HURD United States District Judge DECISION and ORDER Plaintiff brought this civil rights action pursuant to 42 U.S.C. § 1983. On March 17, 2009, the Honorable Gustave J. DiBianco, United States Magistrate Judge, advised, by Report-Recommendation, that defendants' motion for summary judgment be denied without prejudice to re-submit in proper form pursuant to the Local Rules. No objections to the Report-Recommendation were filed.

Defendants' motion for summary judgment was filed on August 28, 2008. Careful review of the motion reveals that defendants are entitled to summary judgment. Moreover, despite at least two extensions of time in which to do so, plaintiff failed to oppose the defendants' motion. Additionally, defense counsel has apologized for the form of his papers and indicated a willingness to refile. Thus, although it has been recommended that the motion be denied without prejudice to refile in proper form, in the interest of judicial efficiency the motion for summary judgment will be granted. Therefore, defendants' having established entitlement to judgment as a matter of law in their favor and plaintiff having failed to oppose the motion, the ReportRecommendation of the Magistrate Judge is rejected. See 28 U.S.C. § 636(b)(1). Accordingly, it is ORDERED that 1. Defendants' motion for summary judgment is GRANTED, and 2. The complaint is DISMISSED in its entirety. The Clerk is directed to enter judgment accordingly.

Dated: April 2, 2009 Utica, New York.

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