Cruz v. Grosso

Filing 125

ORDER: ORDERED that Magistrate Judge Dancks' July 6, 2015 122 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein. ORDERED that Defendant's motion to dismiss Plaintiff's complaint without p rejudice pursuant to Rule 37(d) of the Federal Rules of Civil Procedure as a sanction for Plaintiff's failure to submit to a deposition, see Dkt. No. 113 , is GRANTED. ORDERED that the Clerk of the Court shall enter judgment in favor of Defendant and close this case. Signed by Senior Judge Frederick J. Scullin, Jr on 7/27/15. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
HERMAN CRUZ,
Plaintiff,
v.

9:13-CV-30
(FJS/TWD)

M. GROSSO,
Defendant.
_______________________________________________
APPEARANCES

OF COUNSEL

HERMAN CRUZ
86-C-0468
Sullivan Correctional Facility
Box 116
Fallsburg, New York 12733
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
615 Erie Boulevard West, Suite 102
Syracuse, New York 13204-2465
Attorneys for Defendant

KEVIN M. HAYDEN, AAG

SCULLIN, Senior Judge
ORDER
Plaintiff filed this pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983.
Defendant moved to dismiss the complaint pursuant to Rule 37(d) of the Federal Rules of Civil
Procedure as a sanction for Plaintiff's failure to submit to a deposition or, alternatively, to dismiss
the complaint as a sanction pursuant to Rule 11 of the Federal Rules of Civil Procedure for making
a sworn material misrepresentation to the Court. See Dkt. No. 113. Plaintiff did not file an official
response to the motion, but he did send the Court several letters and motions. See Dkt. Nos. 116,

117, 119, 120).
In a Report-Recommendation and Order dated July 6, 2015, Magistrate Judge Dancks
recommended that the Court grant Defendant's motion to dismiss Plaintiff's complaint without
prejudice as a sanction for his failure to submit to a deposition. See Dkt. No. 122 at 11-12.
On July 15, 2015, the Court received Plaintiff's response to the July 6, 2015
recommendations. See Dkt. No. 123. Plaintiff's response consisted of a copy of Magistrate Judge
Dancks' Report-Recommendation and Order with Plaintiff's hand-written note at the bottom of the
first page. See id. at 1. Given the ambiguity of Plaintiff's response, the Court directed the Clerk of
the Court to send Plaintiff another copy of Magistrate Judge Dancks' Report-Recommendation and
Order and reminded Plaintiff that his objections, if any, were due on or before July 23, 2015. See
Dkt. No. 124, Text Order. Plaintiff has not filed any additional response to Magistrate Judge
Dancks' Report-Recommendation and Order.
When a party does not object to a magistrate judge's report-recommendation, the court
reviews that report-recommendation for clear error or manifest injustice. See Linares v. Mahunik,
No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote
omitted). After conducting this review, "the Court may 'accept, reject, or modify, in whole or in
part, the . . . recommendations made by the magistrate judge.'" Id. (quoting 28 U.S.C.
§ 636(b)(1)(C)).
The Court has reviewed Magistrate Judge Dancks' July 6, 2015 Report-Recommendation
and Order for clear error and manifest injustice; and, finding none, the Court hereby
ORDERS that Magistrate Judge Dancks' July 6, 2015 Report-Recommendation and Order is
ACCEPTED in its entirety for the reasons stated therein; and the Court further
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ORDERS that Defendant's motion to dismiss Plaintiff's complaint without prejudice
pursuant to Rule 37(d) of the Federal Rules of Civil Procedure as a sanction for Plaintiff's failure to
submit to a deposition, see Dkt. No. 113, is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and 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: July 27, 2015
Syracuse, New York

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