Weathers v. Rock et al

Filing 56

ORDER: ORDERS that Magistrate Judge Peebles' December 8, 2014 Report and Recommendation, see Dkt. No. 53 , is ACCEPTED in its entirety for the reasons stated therein. ORDERS that Defendants' motion to dismiss, see Dkt. No. 51 , is GRANTED and Plaintiff's complaint is dismissed in its entirety. ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case. Signed by Senior Judge Frederick J. Scullin, Jr on 3/2/15. {order served via regular mail and certified mail/return receipt on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
ALBERT WEATHERS,
Plaintiff
v.

9:13-CV-195
(FJS/DEP)

DAVID ROCK, Superintendent, Upstate
Correctional Facility; DONALD UHLER,
Deputy Superintendent of Security,
Upstate Correctional Facility; RABBI
HELLER; RABBI FRIEDMANN;
MICHAEL LIRA, Deputy of Programs,
Upstate Correctional Facility; and JEFF
MCCOY, Deputy Commissioner of Programs,
Defendants.
_______________________________________________
APPEARANCES

OF COUNSEL

ALBERT WEATHERS
Buffalo, New York 14212
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

MICHAEL G. MCCARTIN, AAG

SCULLIN, Senior Judge
ORDER
Plaintiff, a former New York State prison inmate, commenced this action in February
2013, asserting claims under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized
Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc-1(a). See Dkt. No. 1.
When Plaintiff failed to appear for a scheduled deposition on two occasions in violation

of the Court's Orders, Defendants renewed a prior request for dismissal of Plaintiff's complaint.
See Dkt. No. 51. In a Report and Recommendation dated December 8, 2014, Magistrate Judge
Peebles recommended that the Court grant Defendants' motion and dismiss Plaintiff's complaint
in its entirety. See Dkt. No. 53 at 10. Plaintiff filed a conclusory objection to that
recommendation, arguing that he objected primarily because of issues due to "his mental state
and not receiving Court documents." See Dkt. No. 54 at 2. With regard to his mental state,
Plaintiff alleged that he
has been diagnos [sic] with SHU Syndrom [sic], impulse controll
[sic], post traumatic stress disorder, adjust [sic] D/O with mixed
anxiety, and is under the care of mental health counselors and
doctors. He is prescribed medication Paroxetine 20 mg, Seroquel
25 mg, Buspar 15 mg, to help him combat his condition.
See id.
Plaintiff does not indicate when he was diagnosed with any of these ailments or why or how they
would prevent him from complying with the Court's Orders, particularly those requiring his
attendance at a deposition. Finally, Plaintiff requests that the Court "give him a chance to
comply to all Courts [sic] rulings in all cases in the Norther District Court." See id.
When the parties do not object to a magistrate judge's report-recommendation or when
their objections are conclusory or general in nature, the court reviews that reportrecommendation 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 Peebles' December 8, 2014 Report and
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Recommendation for clear error and manifest injustice and has found none. As Magistrate Judge
Peebles noted, Plaintiff has a history of non-compliance with Court directives and Defendants'
legitimate discovery requests. See Dkt. No. 53 at 9. In addition, Magistrate Judge Peebles
explained that, although he was concerned in his earlier decision about whether Plaintiff had
been adequately warned about the potential consequences of his refusal to be deposed, "it is now
well-document [sic] that he was made aware of those consequences in both the court's mandatory
Rule 16 scheduling order and [his] decision and order dated September 24, 2014." See Dkt. No.
53 at 9-10.
The record supports Magistrate Judge Peebles' conclusion that the sanction of dismissal is
warranted in this case. Accordingly, the Court hereby
ORDERS that Magistrate Judge Peebles' December 8, 2014 Report and
Recommendation, see Dkt. No. 53, is ACCEPTED in its entirety for the reasons stated therein;
and the Court further
ORDERS that Defendants' motion to dismiss, see Dkt. No. 51, is GRANTED and
Plaintiff's complaint is dismissed in its entirety; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants 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: March 2, 2015
Syracuse, New York

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