McLean v. Smith et al
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, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BRANDON SMITH, Superintendent,
Greene Correctional Facility, et al.,
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
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
the Local Rules.
IT IS SO ORDERED.
Dated: May 26, 2017
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