Banks v. Rock, et al

Filing 82

DECISION AND ORDER: The 72 Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). ORDERED, that Defendants' motion to dismiss plaintiff's action as a sanction for failing to participate in his deposition, pursuan t to Federal Rule of Civil Procedure 37 (ECF No. 71 ) is GRANTED and the complaint is DISMISSED WITH PREJUDICE. The Clerk of the Court shall enter judgment and close the case. Signed by Judge David N. Hurd on 3/29/17.(served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------EDWIN BANKS,
Plaintiff,
-v-

9:13-CV-1500
(DNH/ATB)

D. ROCK, Superintendent, Upstate
Correctional Facility; E. MARSHALL, Correction Officer,
Upstate Correctional Facility; M. SEVEY,
Correction Officer, Upstate Correctional Facility;
B. PAGE, Correction Officer; Upstate Correctional
Facility, HIDE, Correction Officer; Upstate Correctional
Facility;
Defendants.
-------------------------------APPEARANCES:
OF COUNSEL:
EDWIN BANKS
Plaintiff, Pro Se
03-B-1574
Marcy Correctional Facility
P.O. Box 3600
Marcy, New York 13403
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorneys for Defendants
The Capitol
Albany, New York 12224

RACHEL M. KISH, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Edwin Banks brought this civil rights action pursuant to 42 U.S.C.
§ 1983. See Complaint, ECF No. 1. On March 8, 2016, the Honorable Andrew T. Baxter, United
States Magistrate Judge, advised by Report-Recommendation that the defendants’ motion to
dismiss plaintiff’s action as a sanction for plaintiff failing to participate in his deposition pursuant
to Federal Rule of Civil Procedure 37. See ECF No. 72. In a March 30, 2016 Order, this Court

accepted the Report-Recommendation in whole and dismissed plaintiff’s action with prejudice.
See ECF No. 73. On August 5, 2016, plaintiff requested that the Court vacate its prior Order and
permit him an opportunity to file objections. See ECF No. 79. On August 10, 2016, this Court
granted plaintiff’s request and ordered that any objections be submitted by August 24, 2016. See
ECF No. 80. Although the Order was sent to plaintiff’s address at Marcy Correctional Facility,
plaintiff failed to timely file such objections. Instead, on December 14, 2016, plaintiff submitted
a letter seeking the status of his case.
After permitting plaintiff an additional period of time to submit objections and based
upon a careful review of the entire file and the recommendations of the Magistrate Judge, the
Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).
In plaintiff’s December 14, 2016 letter, he indicates a desire to appeal this Court’s
ruling. The plaintiff is advised that pursuant to the Federal Rule of Appellate Procedure, plaintiff
must file a notice of appeal in compliance with Rule 3(c) to challenge this Decision and Order.
Therefore, it is ORDERED that:
(1) Defendants’ motion to dismiss plaintiff’s action as a sanction for failing to
participate in his deposition, pursuant to Federal Rule of Civil Procedure 37 (ECF No. 71) is
GRANTED and the complaint is DISMISSED WITH PREJUDICE; and
(2) The Clerk serve a copy of this Decision and Order upon plaintiff in accordance
with the Local Rules.
The Clerk of the Court shall enter judgment and close the case
IT IS SO ORDERED.

Dated: March 29, 2017
Utica, New York
-2-