Lynch v. Dagostino et al

Filing 30

ORDER adopting 28 Report and Recommendations; granting 23 Motion to Dismiss for Lack of Prosecution; denying 23 Motion for Summary Judgment. Plaintiff's complaint is dismissed in its entirety with prejudice. Signed by Judge Brenda K. Sannes on 8/8/17. (Copy served on plaintiff via regular mail)(rjb, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________________ MARK A. LYNCH, Plaintiff, v. 9:15-CV-1234 (BKS/CFH) SERGEANT GUIDO, Correctional Sgt., Schenectady County Jail, et al., Defendants. ________________________________________________ Appearances: Mark A. Lynch 48930 Schenectady County Jail 320 Veeder Avenue Schenectady, NY 12307 Plaintiff, pro se Jonathan M. Bernstein, Esq. Molly M. Ryan, Esq. Goldberg, Segalla LLP 8 Southwoods Boulevard Suite 300 Albany, NY 12211 Attorney for Defendants Hon. Brenda K. Sannes, United States District Judge: MEMORANDUM-DECISION AND ORDER Plaintiff Mark Lynch commenced this pro se civil rights action asserting claims under 42 U.S.C. § 1983 arising out of his incarceration at Schenectady County Correctional Facility. Dkt. No. 1. On October 19, 2016, Defendants filed a motion to dismiss for lack of prosecution under Fed. R. Civ. P. 41(b) and for summary judgment under Fed. R. Civ. P. 56. Dkt. No. 23. No response has been filed by Plaintiff. In fact, all mail sent to Plaintiff from the Court since January 22, 2016 has been returned to the Court as undeliverable. Dkt. Nos. 15, 17, 20, 25 and 29. Notes on the envelopes that have been returned to the Court indicate that the Plaintiff has been released from the Schenectady County Jail. Dkt. Nos. 25, 29. This matter was referred to United States Magistrate Judge Christian F. Hummel who, on June 28, 2017, issued a ReportRecommendation and Order recommending that Defendants’ motion to dismiss for lack of prosecution be granted and that Defendants’ motion for summary judgment denied as moot. Dkt. No. 28. Magistrate Judge Hummel advised the parties that under 28 U.S.C. § 636(b)(1), and Local Rule 72.1(c), 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. 28, p. 7. No objections to the Report-Recommendation have been filed. Plaintiff’s copy of the Report-Recommendation sent to him by the Court was returned as undeliverable. Dkt. No. 29. 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. 28) is ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion to dismiss for lack of prosecution (Dkt. No. 23) is GRANTED; and it is further 2 ORDERED that Defendants’ alternative motion for summary judgment (Dkt. No. 23) is DENIED as moot; and it is further ORDERED that Plaintiff’s complaint is DISMISSED in its entirety with 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: August 8, 2017 3

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