Cintron v. Gettmann et al

Filing 36

ORDER adopting 35 Report and Recommendations and granting 33 Motion to Dismiss. Plaintiff's Amended Complaint is Dismissed without prejudice. Signed by Judge Brenda K. Sannes on 5/25/17. (Copy served on plaintiff via regular and certified mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
DAVID CINTRON,
Plaintiff,
v.

9:15-CV-0542 (BKS/TWD)

GARY GETTMANN, et al.,
Defendants.
________________________________________________
Appearances:
David Cintron
Bronx, NY 14060
Plaintiff, pro se
Rachel M. Kish, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff David Cintron, a former New York State inmate, commenced this civil rights
action asserting claims under 42 U.S.C. § 1983 arising out of his incarceration at Upstate
Correctional facility. Dkt. Nos. 1 and 14. On October 17, 2016, Defendants filed a motion
under Fed. R. Civ. P. 37(b) and 41(b) for sanctions against plaintiff and for dismissal of the
complaint for lack of prosecution. Dkt. No. 33. Plaintiff has not responded to Defendants’
motion. This matter was assigned to United States Magistrate Judge Thérèse Wiley Dancks
who, on May 1, 2017, issued an Order and Report-Recommendation recommending that

Defendants’ motion to dismiss be granted, without prejudice. Dkt. No. 35. Magistrate Judge
Dancks 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. 35, p. 9. No objections to the ReportRecommendation have been filed.
As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear
error and found none, the Report-Recommendation is adopted in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 35) is ADOPTED in its
entirety; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 33) is GRANTED and
Plaintiff’s Amended Complaint is DISMISSED, without prejudice; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with
the Local Rules.
IT IS SO ORDERED.
Dated: May 25, 2017

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