Brown v. Fischer et al

Filing 56

ORDER adopting 54 Report and Recommendations and granting the 34 Motion to Dismiss. This case is dismissed in its entirety. Signed by Judge Brenda K. Sannes on 3/27/17. (Copy served on plaintiff via regular mail)(rjb, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _________________________________________ DENNIS BROWN, Plaintiff, v. 9:15-CV-01458 (BKS/CFH) SGT. SMITHEM, et al., Defendants. _________________________________________ Appearances: Dennis Brown 96-A-3118 Riverview Correctional Facility P.O. Box 247 Ogdensburg, NY 13669 Plaintiff, pro se Denise P. Buckley, 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 Dennis Brown, a New York State inmate, commenced this civil rights action asserting claims under 42 U.S.C. § 1983 arising out of his incarceration at Five Points Correctional Facility. Dkt. No. 1. In his Complaint, Plaintiff alleges that the Defendants violated his rights under the First and Eight Amendments. On August 18, 2016, Defendants filed a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) on the grounds that Plaintiff’s Complaint is barred by the statute of limitations. Dkt. No. 34. Plaintiff opposed the motion. Dkt. No. 45. This matter was referred to United States Magistrate Judge Christian F. Hummel who, on February 28, 2017, issued a Report-Recommendation and Order recommending that Defendants’ motion be granted and that this case be dismissed in its entirety. Dkt. No. 54. Magistrate Judge Hummel 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. 54, p. 18. Following the Report-Recommendation, Plaintiff filed a one-page later letter. Dkt. No. 55. Although the letter does not indicate that Plaintiff intends it to be an objection to the ReportRecommendation, the Court has reviewed it to determine whether, read liberally, it might be so construed. Id. In the letter, Plaintiff reiterates the assertions he made in the cover letter to the Complaint, Dkt. No. 1-2, the contents of which he also quoted in his response to the motion to dismiss. Dkt. No. 45, pp. 4, 6–7. Since the letter, even construed liberally, fails to raise a specific objection and the time for filing objections has expired, the Court reviews the ReportRecommendation for clear error. See Silva v. Peninsula Hotel, 509 F. Supp. 2d 364, 366 (S.D.N.Y. 2007) (“If . . . the party . . . simply reiterates her original arguments, the district court reviews the report and recommendation only for clear error.” (internal quotation marks omitted)); 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. 54) is ADOPTED in its entirety; and it is further 2 ORDERED that Defendants’ motion to dismiss (Dkt. No. 34) is GRANTED and this case DISMISSED in its entirety; 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: March 27, 2017 3

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