Smith v. Ashley et al

Filing 50

ORDER that the facts set forth in the Procedural History of Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 48 ) are adopted in their entirety; that the recommendation in the Report-Recommendation (Dkt. No. 48 ) that this matter be r eferred back to Magistrate Judge Baxter to determine whether a lesser sanction under Fed. R. Civ. P. 37 would be appropriate is ADOPTED and referring this matter back to Magistrate Judge Baxter to determine whether a lesser sanction under Fed. R. Civ. P. 37 would be appropriate. Signed by Judge Brenda K. Sannes on 11/29/17. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
JASON SMITH,
Plaintiff,
v.
9:15 -CV-0496 (BKS/ATB)
A. RUFA, Educational Director; Riverview
Correctional Facility, et al.,

Defendants.
________________________________________________
Appearances:
Jason Smith
New York, NY 10027
Plaintiff, pro se
Katie E. Valder, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Jason Smith brought this action against defendants under 42 U.S.C. §
1983 asserting First Amendment retaliation and Fourteenth Amendment due process claims
arising out of his confinement at Riverview Correctional Facility. Dkt. No. 1. Presently before
the Court is Defendants’ motion to dismiss the complaint for lack of prosecution and/or sanctions
under Fed. R. Civ. P. 37(d) and 41(b). Dkt. No. 47. Plaintiff failed to respond to Defendants’
motion. This matter was referred to United States Magistrate Judge Andrew T. Baxter who, on

October 2, 2017, issued a Report-Recommendation recommending that Defendants’ motion to
dismiss be granted, and that the complaint be dismissed with prejudice unless Plaintiff files
timely meritorious objections. Magistrate Judge Baxter recommended that if Plaintiff files
timely meritorious objections, and the Court deems it appropriate, that the case be referred back
to Judge Baxter to determine whether a lesser sanction under Rule 37 would be appropriate. Dkt.
No. 48, at 9. Magistrate Judge Baxter advised the parties that, under 28 U.S.C. § 636(b)(1), they
had fourteen days within which to file written objections to the report, and that the failure to
object to the report within fourteen days would preclude appellate review. Dkt. No. 48, at 9-10.
Plaintiff filed a timely objection to the Report-Recommendation. Dkt. No. 49. In his
objection Plaintiff repeats excuses he previously provided regarding his failures to appear for his
deposition. Id. Plaintiff claims that he “has made several attempts to communicate” with
defense counsel by correspondence and telephone. Id. Plaintiff asserts that he “is declaring his
undivided attention to this matter and also pursuing this matter/civil action,” and that he “has
now arranged a more effective way of receiving his correspondence” with this Court and defense
counsel, “and is more than willing to comply and go forward with this matter.” Id.
This Court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
error. Id. Plaintiff has not objected to the facts set forth in the Procedural History of the ReportRecommendation, and the Court adopts those facts in their entirety. In light of Plaintiff’s timely
objection and asserted interest in pursuing this litigation, the Court adopts Magistrate Baxter’s

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recommendation that this matter be referred back to Magistrate Judge Baxter to determine
whether a lesser sanction under Fed. R. Civ. P. 37 would be appropriate.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the facts set forth in the Procedural History of Magistrate Judge
Baxter’s Report-Recommendation (Dkt. No. 48) are adopted in their entirety; and it is further
ORDERED that the recommendation in the Report-Recommendation (Dkt. No. 48) that
this matter be referred back to Magistrate Judge Baxter to determine whether a lesser sanction
under Fed. R. Civ. P. 37 would be appropriate is ADOPTED; and it is further
ORDERED that this matter is referred back to Magistrate Judge Baxter to determine
whether a lesser sanction under Fed. R. Civ. P. 37 would be appropriate.
IT IS SO ORDERED.
Dated: November 29, 2017

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