Fisher v. Jenks et al

Filing 18

ORDER: ORDERED that 17 Report and Recommendation is APPROVED and ADOPTED in its entirety. ORDERED that 12 Motion to Dismiss for Failure to State a Claim is GRANTED in part. ORDERED, that Plaintiff's Eighth Amendment claim is DISMIS SED with prejudice. ORDERED, that Defendants respond to Plaintiff's Fourth Amendment excessive force claim in accordance with the Federal Rules of Civil Procedure and the Local Rules. Signed by Senior Judge Lawrence E. Kahn on 2/20/14. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAMES R. FISHER, JR.,
Plaintiff,
-against-

9:13-CV-0213 (LEK/TWD)

FAY JENKS; et al.,
Defendants.
___________________________________
ORDER
This matter comes before the Court following a Report-Recommendation filed on January 9,
2014, by the Honorable Thérèse Wiley Dancks, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3. Dkt. No. 17 (“Report-Recommendation”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s reportrecommendation, the party “may serve and file specific, written objections to the proposed findings
and recommendations.” FED. R. CIV. P. 72(b); L.R. 72.1(c). “If no objections are filed . . .
reviewing courts should review a report and recommendation for clear error.” Edwards v. Fischer,
414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006); see also Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.
2003) (“As 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.”); Farid v. Bouey, 554 F. Supp. 2d 301,
306 (N.D.N.Y. 2008).
No objections to the Report-Recommendation were filed in the allotted time period. After a
thorough review of the Report-Recommendation and the record, the Court has determined that the
Report-Recommendation is not subject to attack for clear error or manifest injustice.
Accordingly, it is hereby:

ORDERED, that the Report-Recommendation (Dkt. No. 17) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 12) to dismiss is GRANTED in part; and
it is further
ORDERED, that Plaintiff’s Eighth Amendment claim is DISMISSED with prejudice; and
it is further
ORDERED, that Defendants respond to Plaintiff’s Fourth Amendment excessive force
claim in accordance with the Federal Rules of Civil Procedure and the Local Rules; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties to this
action.
IT IS SO ORDERED.

DATED:

February 20, 2014
Albany, New York

2