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, )

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

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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

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