Deliser v. Miller et al

Filing 54

DECISION AND ORDER: ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 53 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendant's motion to dismiss (Dkt. No. 46 ) is GRANTED. ORDERED that Plainti ff's Complaint (Dkt. No. 1) is DISMISSED in its entirety and the Clerk of the Court shall enter Judgment for Defendant and close this action. Signed by Chief Judge Glenn T. Suddaby on 11/25/15. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
JOSUE DELISER,
Plaintiff,
9:13-CV-803
(GTS/DEP)

v.
J. MILLER, Lt. C.O.,
Defendant.
_____________________________________________
APPEARANCES:

OF COUNSEL:

JOSUE DELISER, 09-A-3970
Plaintiff, Pro Se
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendant
The Capitol
Albany, New York 12224

MELISSA A. LATINO, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief 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 New York State Department of Corrections and Community
Supervision employee J. Miller (“Defendant”) pursuant to 42 U.S.C. § 1983, are (1) Defendant’s
motion to dismiss, and (2) United States Magistrate Judge Peebles’ Report-Recommendation
recommending that Defendants' motion be granted. (Dkt. Nos. 46, 53.) None of the parties have
filed objections to the Report-Recommendation, and the deadline by which to do so has expired.
(See generally Docket Sheet.) After carefully reviewing the relevant papers herein, including

Magistrate Judge Peebles’ thorough Report-Recommendation, the Court can find no clear error
in the Report-Recommendation.1 Magistrate Judge Peebles employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. As a result, the
Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein,
and Defendant’s motion is granted.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 53) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant’s motion to dismiss (Dkt. No. 46) is GRANTED; and it is
further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED in its entirety and the
Clerk of the Court shall enter Judgment for Defendant and close this action.
Dated: November 25, 2015
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
Chief, United States District Judge

1

When no objection is made to a report-recommendation, the Court subjects that reportrecommendation 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 omitted).

2