Jenkins v. Stallone

Filing 22

ORDER: ORDERED that the Report-Recommendation (Dkt. No. 19 ) is ADOPTED in its entirety for the reasons stated therein. ORDERED that the petition (Dkt. No. 1) is DENIED and DISMISSED in its entirety. ORDERED that no certificate of appealab ility shall issue with respect to either of the claims set forth in the petition. ORDERED that the Clerk shall close this case. ORDERED that the Clerk of the Court shall serve a copy of this Order as well as the Report and Recommendation (Dkt. No. 19) upon all parties in accordance with the local rules. Signed by Judge Brenda K. Sannes on 4/17/15.{order and copy of dkt. no. 19 served via certified mail/return receipt on pl (nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
DAVID A. JENKINS,
Petitioner,
v.

9:11-CV-1482 (BKS/DEP)

E. STALLONE,
Respondent.
___________________________________________
APPEARANCES:
David A. Jenkins, Pro Se
Last Known Address
Buffalo, NY 14212
Hon. Eric T. Schneiderman
New York State Attorney General
Thomas B. Litsky, Esq., Assistant Attorney General
120 Broadway
New York, NY 10271
For Respondent
Hon. Brenda K. Sannes, United States District Court Judge
ORDER
Petitioner David A. Jenkins, a former New York State inmate, commenced this
proceeding pursuant to 28 U.S.C. § 2254 challenging the imposition of a five-year term of postrelease supervision. Dkt. No. 7, p. 3. On March 11, 2015, United States Magistrate Judge David
E. Peebles issued a Report and Recommendation, recommending that the petition be denied and
dismissed in all respects. Dkt. No. 19, p. 17. Magistrate Judge Peebles advised the parties that:
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the
foregoing report. Such objections must be filed with the clerk of the court within
FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS

REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
Dkt. No. 19, p. 18. A copy of the Report and Recommendation was mailed to Jenkins’ last
known address via certified mail. Dkt. No. 19. Jenkins’ copy of the Report and Recommendation
was returned to the Court marked “Not deliverable as addressed – unable to forward” and “don’t
live there.” Dkt. No. 20.
In a Decision and Order entered on April 2, 2015, the Court reminded Jenkins of his
obligation to notify the Court of any change in address, see Local Rule 10.1(c)(2), and provided
Jenkins an additional fourteen days to file his current address and any objections to the Report
and Recommendation. Dkt. No. 21, pp. 2-3. The Court advised Jenkins that if he failed to
comply with the Decision and Order, the Court would “consider the Report and
Recommendation as unopposed and review for clear error only.” Dkt. No. 21, p. 4. The Decision
and Order was served on Jenkins via regular mail at the address he most recently provided. See
Dkt. No. 17 (notice of change of address). Although the Decision and Order (Dkt. No. 21) was
not returned as undeliverable, Jenkins has not, to date, filed a change of address or any
objections to the Report and Recommendation.
Accordingly, as no objections to the Report-Recommendation have been filed and the
time for filing objections has expired, the Court reviews the Report and Recommendation for
clear error. See Glaspie v. N.Y.C. Dep’t of Corr., No. 10 CV 00188(GBD)(JCF), 2010 WL
4967844, at *1, 2010 U.S. Dist. LEXIS 131629, at *2-3 (S.D.N.Y. Nov. 30, 2010) (explaining
that when no objections to report and recommendation are made, “the Court may adopt [it] if
there is ‘no clear error on the face of the record.’”) (quoting Adee Motor Cars, LLC v. Amato,

2

388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005)). Having reviewed the Report and Recommendation
in its entirety and having found no clear error, it is hereby:
ORDERED that the Report-Recommendation (Dkt. No. 19) is ADOPTED in its entirety
for the reasons stated therein; and it is further
ORDERED that the petition (Dkt. No. 1) is DENIED and DISMISSED in its entirety;
and it is further
ORDERED that no certificate of appealability shall issue with respect to either of the
claims set forth in the petition; and it is further
ORDERED that the Clerk shall close this case; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order as well as the
Report and Recommendation (Dkt. No. 19) upon all parties in accordance with the local rules.
IT IS SO ORDERED.
Dated: April 17, 2015

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Not Reported in F.Supp.2d, 2010 WL 4967844 (S.D.N.Y.)
(Cite as: 2010 WL 4967844 (S.D.N.Y.))

Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
S.D. New York.
Gordon GLASPIE, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF CORRECTIONS, et al., Defendants.
No. 10 CV 00188(GBD)(JCF).
Nov. 30, 2010.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, District Judge.
*1 Pro se Plaintiff Gordon Glaspie filed this
suit under 42 U.S.C. § 1983, alleging that Defendants violated his civil rights by assigning him to a
cell block area where swine flu (H1N1) cases had
been discovered. Plaintiff alleged injuries of mental
and emotional stress. Defendants moved to dismiss
Plaintiff's Complaint on two grounds: (1) FED. R.
CIV. P. 12(b)(1) for Plaintiff's failure to exhaust his
administrative remedies; and (2) FED. R. CIV. P.
12(b)(6) for Plaintiff's failure to state a claim. This
Court referred the motion to Magistrate Judge
James C. Francis IV for a Report and Recommendation (“Report”). Magistrate Judge Francis recommended that the Defendants' motion to dismiss for
failure to state a claim be granted.
The Court may accept, reject or modify, in
whole or in part, the findings and recommendations
set forth within the Report. 28 U.S.C. § 636(b)(1).
When there are objections to the Report, the Court
must make a de novo determination of those portions of the Report to which objections are made.
Id.; see also Rivera v. Barnhart, 432 F.Supp.2d
271, 273 (S.D.N.Y.2006). The district judge may
also receive further evidence or recommit the matter to the magistrate judge with instructions. See

FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1)(c). It
is not required, however, that the Court conduct a
de novo hearing on the matter. See United States v.
Raddatz, 447 U.S. 667, 676 (1980). Rather, it is
sufficient that the Court “arrive at its own, independent conclusions” regarding those portions to
which objections were made. Nelson v. Smith, 618
F.Supp. 1186, 1189–90 (S.D.N.Y.1985) (quoting
Hernandez v. Estelle, 711 F.2d 619, 620 (5th
Cir.1983)). When no objections to a Report are
made, the Court may adopt the Report if “there is
no clear error on the face of the record.” Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253
(S.D.N.Y.2005) (citation omitted).
In his report, Magistrate Judge Francis advised
the parties that failure to file timely objections to
the Report would constitute a waiver of those objections. See 28 U.S.C. § 636(b)(1); FED. R. CIV.
P. 72(b). This Court has received no objections to
the Report, and the time to do so has expired.
Magistrate Judge Francis properly determined
that Plaintiff failed to adequately allege a deprivation of “basic human needs” that was “objectively
sufficiently serious.” Plaintiff, therefore, did not
identify conduct constituting an Eighth Amendment
violation for cruel and unusual punishment. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994). In
particular, Magistrate Judge Francis found that: (1)
mere exposure to swine flu does not involve an
“unreasonable risk of serious damage to ... future
health”; (2) no residual risk exists because Plaintiff
was moved to a different correctional facility; and
(3) the Amended Complaint lacked factual allegations of an illness resulting from Plaintiff's exposure or risk of latent health effects.
Helling v.
McKinney, 509 U.S. 25, 35–36 (1993); see also ReFN1
port at 7 (collecting cases).
FN1. As to the Rule 12(b)(1) ground for
dismissal, Magistrate Judge Francis determined that, “because the instant motion
can be determined on other grounds, it

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Not Reported in F.Supp.2d, 2010 WL 4967844 (S.D.N.Y.)
(Cite as: 2010 WL 4967844 (S.D.N.Y.))

need not be determined whether plaintiff
exhausted his claims.” Report at 3; see 42
U.S.C. § 1997e(c)(2); Woodford v. Ngo,
548 U.S. 81, 85, 101 (2006) (the
“exhaustion requirement is not jurisdictional, and thus [allows] a district court to
dismiss plainly meritless claims without
first addressing what may be a such more
complex question, namely, whether the
prisoner did in fact properly exhaust available administrative remedies”)
*2 After carefully reviewing the Report and
Recommendation, this Court finds that the Report
is not facially erroneous, and adopts the Report's recommendation to dismiss all claims against all Defendants. The Defendants' motion to dismiss is
GRANTED.
SO ORDERED:
S.D.N.Y.,2010.
Glaspie v. New York City Dept. of Corrections
Not Reported in F.Supp.2d, 2010 WL 4967844
(S.D.N.Y.)
END OF DOCUMENT

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