Walsh v. Department of Correctional and Community Supervision et al

Filing 42

ORDER: ORDERS that 40 Magistrate Judge Baxter's March 21, 2014 Report-Recommendation is ADOPTED in its entirety for the reasons stated therein. ORDERS that 37 Defendants' motion to dismiss for failure to prosecute is GRANTED. ORDERS that Plaintiff's complaint is DISMISSED without prejudice. ORDERS that the Clerk of the Court shall close this case. Signed by U.S. District Judge Mae A. D'Agostino on 5/2/14. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
WILLIAM S. WALSH,
Plaintiff,
vs.

9:12-cv-01722
(MAD/ATB)

JOYCE CARVER JORDAN, Director of
Classication and Movement; DARWIN
LACLAIR, Superintendent; JOANNE
FITCHETTE, Acting Deputing Superintendent
of Programs; GLENN CHAMPAGNE, Medical
Director; DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

WILLIAM S. WALSH
06-A-3975
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

RACHEL M. KISH, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff, a former New York State prison inmate, and whose whereabouts are not currently
known to the Court, commenced this action against Defendants who are employed at the prison
facility in which he was confined, pursuant to 42 U.S. C. § 1983. See Dkt. No. 1. In his
complaint, Plaintiff asserts claims under 42 U.S.C. § 1983, the Americans with Disabilities Act,

42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 794 et seq. Plaintiff asserts that he has a "physical impairment of the digestive system"
that substantially limits his ability to eat. Dkt. No. 1 at 6. He claims that he was denied any
reasonable accommodation for his disability at Franklin Correctional Facility, and that
Defendants have refused to house him at a facility where his disability could reasonably be
accommodated. See id. at 7, 10-30.
On February 4, 2014, Defendants moved to dismiss Plaintiff's complaint based on his
failure to notify the Court of a change of address pursuant to the Local Rules of Practice for the
Northern District of New York. See Dkt. No. 37. Upon the filing of that motion, the Court set a
deadline of February 25, 2014 for the filing of any response by Plaintiff in opposition. Plaintiff
failed to respond in opposition to Defendants' motion.
On March 21, 2014, Magistrate Judge Baxter issued a Report-Recommendation in which
he recommended that the Court grant Defendants' motion to dismiss. See Dkt. No. 40.
Magistrate Judge Baxter found that dismissal is appropriate pursuant to Local Rule 7.1(b)(3)
because Defendants "have accurately cited proper legal authority for the basis of their motion to
dismiss." Moreover, Magistrate Judge Baxter found that, in the alternative, dismissal is
appropriate pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Local Rule
10.1(c)(2) for Plaintiff's failure to notify the Court or Defendants' counsel of his new address,
which violated both a court order and the Local Rules of this Court. Neither party objected to
Magistrate Judge Baxter's recommendation nor asked for an extension of time to do so.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
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when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
A litigant's failure to file objections to a magistrate judge's report and recommendation, even
when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas
v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to object to
any purported error or omission in a magistrate judge's report waives further judicial review of the
point" (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if
it informs the litigant that the failure to timely object will result in the waiver of further judicial
review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298,
299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)
(holding that a pro se party's failure to object to a report and recommendation does not waive his
right to appellate review unless the report explicitly states that failure to object will preclude
appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and former 6(e)
of the Federal Rules of Civil Procedure).
In the present matter, Magistrate Judge Baxter provided plaintiff adequate notice that he
was required to file objections to the Report- Recommendation, and specifically informed him
that failure to object to any portion of the report would preclude his right to appellate review. See
Dkt. No. 40. Specifically, Magistrate Judge Baxter informed plaintiff that "FAILURE TO
OBJECT TO THIS REPORT WITHIN 14 DAYS WILL PRECLUDE APPELLATE
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REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health
and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a),
6(e)." See id. Magistrate Judge Baxter clearly provided Plaintiff with sufficient notice of the
consequences of failing to object to the Report-Recommendation.
Having carefully reviewed the March 21, 2014 Report-Recommendation, the Court finds
that Magistrate Judge Baxter correctly determined that the Court should grant Defendants' motion
to dismiss. Defendants established their entitlement to dismissal in their motion, and Plaintiff
failed to respond. See N.D.N.Y.L.R. 7.1(b)(3). Alternatively, dismissal is appropriate pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure and Local Rule 10.1(c)(2) in light of Plaintiff's
failure to notify the Court of his current address.
Wherefore, the Court hereby
ORDERS that Magistrate Judge Baxter's March 21, 2014 Report-Recommendation is
ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss for failure to prosecute (Dkt. No. 37) is
GRANTED; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED without prejudice; and the Court
further
ORDERS that the Clerk of the Court shall close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 2, 2014
Albany, New York

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