McLean v. Smith et al

Filing 27

ORDER adopting 24 Report and Recommendations and granting Defendants' 19 Motion to Dismiss for Lack of Prosecution. Plaintiff's complaint is dismissed without prejudice. Signed by Judge Brenda K. Sannes on 5/26/17. (Copy served on plaintiff via regular mail)(rjb, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________________ JERMAINE MCLEAN, Plaintiff, v. 9:16-CV-0227 (BKS/TWD) BRANDON SMITH, Superintendent, Greene Correctional Facility, et al., Defendants. ________________________________________________ Appearances: Jermaine McLean 08-A-0386 Coxsackie Correctional Facility P.O. Box 999 Coxsackie, NY 12051 Plaintiff, pro se Christopher J. Hummel, 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 Jermaine McLean, a New York State inmate, commenced this civil rights action asserting claims under 42 U.S.C. § 1983 arising out of his incarceration at Greene Correctional Facility. Dkt. No. 1. An Answer was filed on May 31, 2016 (Dkt. No. 14), and on June 1, 2016, the Court issued a Mandatory Pretrial Discovery and Scheduling Order (Dkt. No. 15). On August 24, 2016, mail that the Court sent to Plaintiff at Coxsackie Correctional Facility was returned as undeliverable with a notation that Plaintiff had been released from custody. Dkt. No. 18. On October 27, 2016, Defendants filed a motion to dismiss under Fed. R. Civ. P. 37 and 41 for failure to prosecute and as a sanction for failing to appear for deposition. Dkt. No. 19. Plaintiff did not file a response to Defendants’ motion and all mail sent to the address Plaintiff provided to Coxsackie upon his release has been returned to the Court as undeliverable. Dkt. Nos. 22, 23, 25 and 26. This matter was assigned to United States Magistrate Judge Thérèse Wiley Dancks who, on May 1, 2017, issued a Report-Recommendation and Order recommending that Defendants’ motion to dismiss be granted and that Plaintiff’s complaint dismissed without prejudice. Dkt. No. 24. 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. 24, p. 10. No objections to the Report-Recommendation 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. 24) is ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion to dismiss (Dkt. No. 19) is GRANTED and Plaintiff’s 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 2 the Local Rules. IT IS SO ORDERED. Dated: May 26, 2017 3

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