Deliser v. Miller et al

Filing 28

DECISION and ORDER: ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 21 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendant's motion to dismiss (Dkt. No. 14 ) is GRANTED unless, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff submits a Peralta waiver notifying the Court and Defendant's counsel of his decision to abandon, for all time, any claim associated with the duration of his confinement arising from the disciplinary proceeding conducted by Defendant. ORDERED that, in the event Plaintiff submits a Peralta waiver, he is precluded from seeking compensatory damages in this action. ORDERED that the Clerk of the Court is directed to re-s erve on Plaintiff a copy of Magistrate Judge Peebles' Report-Recommendation of July 7, 2014, along with a copy of this Decision and Order. Signed by Judge Glenn T. Suddaby on 9/15/14. {order and copy of r&r served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
JOSUE DELISER,
Plaintiff,
9:13-CV-0803
(GTS/DEP)

v.
J. MILLER, Corr. Lt., Clinton Corr. Facility,
Defendant.
_______________________________________
APPEARANCES:

OF COUNSEL:

JOSUE DELISER, 09-A-3970
Pro Se Plaintiff, Pro Se
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
The Capitol
Albany, New York 12224

MELISSA A. LATINO, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Josue
Deliser (“Plaintiff”) against the above-captioned New York State correctional employee
(“Defendant”), are Defendant’s motion to dismiss Plaintiff’s Complaint for failure to state a
claim, and United States Magistrate Judge David E. Peebles’ Report-Recommendation of July 7,
2014, recommending that Defendant’s motion be granted unless, within thirty (30) days of the
date of an Order adopting the Report-Recommendation, Plaintiff submits to the Court and
Defendant's counsel a written notification of his abandonment, for all time, of any claim
associated with the duration of his confinement arising from the disciplinary proceeding

conducted by Defendant (hereinafter a “Peralta waver”). (Dkt. Nos. 14, 21.)1 Plaintiff has not
filed an Objection to the Report-Recommendation, and the deadline by which to do so has
expired. (See generally Docket Sheet.) For the reasons set forth below, the ReportRecommendation is adopted in its entirety.
On July 7, 2014, the Report-Recommendation was mailed to Plaintiff at his then-current
address of record, Upstate Correctional Facility. (Dkt. No. 21.) On July 9, 2014, the ReportRecommendation arrived at Upstate Correctional Facility, and the Mail & Supply Clerk sent a
letter to the Court notifying it that Plaintiff was “temporarily absent from this facility and may
not return in the immediate future.” (Dkt. No. 22.) On August 21, 2014, Plaintiff filed a Notice
of Change of Address, advising that his new address was Clinton Correctional Facility. (Dkt.
No. 23.)2
Local Rule 10.1 of the Local Rules of Practice for this Court provides that “[a]ll . . . pro
se litigants must immediately notify the Court of any change of address.” N.D.N.Y. L.R.
10.1(c)(2) (emphasis in original).3 In addition, in the Court’s Decision and Order of September
12, 2013, the Court specifically directed Plaintiff “to promptly notify, in writing, the Clerk's
Office and all parties or their counsel of any change in Plaintiff's address.” (Dkt. No. 8, at

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Plaintiff asserts a Fourteenth Amendment due process claim against Defendant
arising from a disciplinary hearing in which he found Plaintiff guilty of possessing a weapon and
promoting prison contraband and sentenced Plaintiff to a 12-month confinement in a Special
Housing Unit and a three-month loss of good-time credits. (See generally Dkt. No. 1 [Plf.’s
Compl.].)
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In a separate document, Plaintiff advised the Court that he had arrived at Clinton
Correctional Facility on August 19, 2014. (Dkt. No. 24, at 1.)
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The Court notes that a courtesy copy of the Court’s Local Rules of Practice are on
file at all of the New York State correctional facilities at which Plaintiff has been incarcerated.
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10 [emphasis in original].) Based on the fact that at least 43 days elapsed between his departure
from Upstate Correctional Facility and his mailing of his Notice of Change of Address, the Court
finds that Plaintiff did not immediately notify the Court of his change of address. (At the very
least, Plaintiff could have notified the Court that Upstate Correctional Facility would no longer
be his current address.) Furthermore, the Court finds that this delay was material in that, had
Plaintiff promptly notified the Court of his change of address, the Court would have re-served
the Report-Recommendation on him and extended the Objection deadline, which was July 24,
2014. See Fed. R. Civ. P. 72(a); N.D.N.Y. L.R. 72.1(b); Fed. R. Civ. P. 6(a)(1)(B); Fed. R. Civ.
P. 6(d). Finally, the Court finds that this delay was prejudicial in that some two months have
elapsed from the filing of the Report-Recommendation in a case that is some fifteen months old.
For all these reasons, the Court declines to nunc pro tunc extend the Objection deadline, as a
sanction against Plaintiff (pursuant to Fed. R. Civ. P. 16[f][1][C]) for violating an Order of the
Court.
Where, as here, no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL
453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections
of [a magistrate judge's] report to which no specific objection is made, so long as those sections
are not facially erroneous.”) (internal quotation marks and citations omitted).
After carefully reviewing the relevant filings in this action, the Court can find no clear
error in the Report-Recommendation: Magistrate Judge Peebles employed the proper standards,
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accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court
accepts and adopts the Report-Recommendation for the reasons stated therein. (Dkt. No. 21.)
The Court would add only that it would reach the same conclusion even if it were to subject the
Report-Recommendation to a de novo review. Should Plaintiff challenge the merits of the
Report-Recommendation in a timely motion for reconsideration of this Decision and Order, the
Court will subject the Report-Recommendation to another de novo review.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 21) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant’s motion to dismiss (Dkt. No. 14) is GRANTED unless,
within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff submits a Peralta
waiver notifying the Court and Defendant’s counsel of his decision to abandon, for all time, any
claim associated with the duration of his confinement arising from the disciplinary proceeding
conducted by Defendant; and it is further
ORDERED that, in the event Plaintiff submits a Peralta waiver, he is precluded from
seeking compensatory damages in this action; and it is further
ORDERED that the Clerk of the Court is directed to re-serve on Plaintiff a copy of
Magistrate Judge Peebles’ Report-Recommendation of July 7, 2014, along with a copy of this
Decision and Order.
Dated: September 15, 2014
Syracuse, New York

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