Resto v. Office of Mental Health et al

Filing 6

ORDER, that the 5 Report-Recommendation of Magistrate Judge David R. Homer filed January 7, 2009 is ACCEPTED in its entirety. That Resto's complaint is DISMISSED in its entirety without prejudice pursuant to Fed. R. Civ. P. 16(f)(1)(C) and 37(b)(2)(A)(v) for Resto's failure to comply with the Court's September 2, 2008 order. Signed by Judge Gary L. Sharpe on 1/28/2009. (Attachments: # 1 Judge Homer's Report-Recommendation) (jel, )

Case 9:08-cv-00929-GLS-DRH

Document 5

Filed 01/07/2009

Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------ALBERTO RESTO, Plaintiff, v. OFFICE OF MENTAL HEALTH; UPSTATE SPECIAL HOUSING UNIT; GEORGE PATAKI; DOCTOR WURZBERGER; MR. MARINELLI, Coordinator; and KIM, Unit Chief, Defendants. ------------------------------------------------------------------APPEARANCES: ALBERTO RESTO Plaintiff pro se 01-A-0183 Upstate Correctional Facility Post Office Box 2001 Malone, New York 12953 DAVID R. HOMER U.S. MAGISTRATE JUDGE REPORT-RECOMMENDATION In an order filed September 2, 2008, this Court directed Alberto Resto ("Resto") to either pay the filing fee of $350.00 or submit a current authorization form. Docket No. 4. On No. 9:08-CV-929 (GLS/DRH)

November 18, 2008, a Text Order was issued reminding plaintiff of his obligation and granting an extension of time until December 21, 2008 to comply with the Court's order. Resto has neither paid the filing fee nor submitted a current authorization form. Accordingly, since this action cannot proceed in the absence of Resto's submission of the required filing fee or an authorization form, it is hereby

Case 9:08-cv-00929-GLS-DRH

Document 5

Filed 01/07/2009

Page 2 of 2

RECOMMENDED that Resto's complaint be DISMISSED in its entirety without prejudice pursuant to Fed. R. Civ. P. 16(f)(1)(C) and 37(b)(2)(A)(v) for Resto's failure to comply with the Court's September 2, 2008 order. Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

Dated: January 7, 2009 Albany, New York

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