Wilson v. Ulster Correctional Facility et al

Filing 25

ORDER: ORDERS that Magistrate Judge Peebles' July 26, 2017 Report and Recommendation, see Dkt. No. 23 , is ACCEPTED in its entirety for the reasons stated therein. ORDERS that Defendant's motion to dismiss Plaintiff's compl aint for failure to prosecute his claims, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, see Dkt. No. 22 , is GRANTED. ORDERS that Plaintiff's complaint is DISMISSED in all respects. ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case. Signed by Senior Judge Frederick J. Scullin, Jr on 8/17/17. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
DONOVAN WILSON,
Plaintiff,
v.

9:16-CV-1082
(FJS/DEP)

C. BALDELLI, C.O., formerly known as
John Doe,
Defendant.
______________________________________________
APPEARANCES

OF COUNSEL

DONOVAN WILSON
A#041-644-881
Buffalo Federal Detention Facility
4250 Federal Drive
Batavia, New York 14020
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant

MATTHEW P. REED, AAG

SCULLIN, Senior Judge
ORDER
Plaintiff commenced this civil rights action pursuant to 42 U.S.C. § 1983 in the United
States District Court for the Southern District of New York. See Dkt. No. 2. By an Order issued on
August 26, 2016, District Judge Colleen McMahon transferred the action to this District. See Dkt.
Nos. 4-5.
On January 12, 2017, the Court issued a mandatory pretrial discovery and scheduling Order

in which it imposed certain obligations in connection with the action, including the parties'
obligations concerning the exchange of mandatory disclosures. See Dkt. No. 17. Defendant sent his
mandatory disclosures to Plaintiff on March 13, 2017, using the Gowanda Correctional Facility
address that Plaintiff had provided in his complaint when he filed this action. See Dkt. No. 19; see
also Dkt. No. 2 at 2. Those mandatory disclosures were returned to Defendant's counsel on April
17, 2017, marked "RETURN TO SENDER." See Dkt. No. 22-1 at 2, 8. Defendant's counsel later
determined that Plaintiff had been released from the Gowanda Correctional Facility on March 14,
2017. See id. at 2, 5-6.
On April 13, 2017, Plaintiff advised the Court and Defendant's counsel that he had been
transferred to the Buffalo Federal Detention Facility. See Dkt. No. 20. Defendant's counsel re-sent
Defendant's mandatory disclosures to Plaintiff at his new address. See Dkt. No. 22-1 at 2, 10.
Defendant's counsel contacted the Buffalo Federal Detention Facility on May 25, 2017, to make
arrangements to take Plaintiff's deposition, as the Court's pretrial scheduling order authorized. See
id. at 3. The facility advised Defendant's counsel that Plaintiff had been released from custody on
May 16, 2017. See id. Defendant's counsel forwarded a Notice of Deposition to Plaintiff's last
known address at the Buffalo Federal Detention Facility, advising him that the deposition would be
conducted on June 14, 2017. See id. at 3, 12-14. That Notice of Deposition was returned to
Defendant's counsel on June 5, 2017, bearing the notation "RETURN TO SENDER." See id. at 3,
16. For obvious reasons, Plaintiff did not appear for the scheduled deposition. See id. at 3, 18-24.
On June 30, 2017, Defendant moved to dismiss Plaintiff's complaint pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for failure to prosecute his claims. See Dkt. No. 22.
Although Plaintiff's response to Defendant's motion was due on or before July 18, 2017, he did not
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file any papers in opposition to the motion.
In a Report and Recommendation dated July 26, 2017, Magistrate Judge Peebles, after
considering the relevant factors, recommended that this Court grant Defendant's motion. See Dkt.
No. 23 at 9. Magistrate Judge Peebles also advised that, "[p]ursuant to 28 U.S.C. § 636(b)(1), the
parties may lodge written objections to the foregoing report. Such objections must be filed with the
clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT
TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)." See id. (footnote omitted).
Finally, Magistrate Judge Peebles ordered the Clerk of the Court to serve a copy of his Report and
Recommendation on the parties in accordance with the Local Rules. See id. at 10. In compliance
with those instructions, the Clerk of the Court sent a copy of the Report and Recommendation to
Plaintiff at his last known address, i.e., the Buffalo Federal Detention Facility.
On August 9, 2017, the copy of the Report and Recommendation that the Clerk of the Court
had sent to Plaintiff was returned as undeliverable with the envelope marked "Return to Sender."
See Dkt. No. 24. To date, despite the Court's admonition to him about the consequences of his
failure to notify the Court and opposing counsel of any change in his address, Plaintiff has not
provided the Court with his current address.
When a party does not object to a magistrate judge's recommendations, the court reviews
those recommendations for clear error or manifest injustice. See Linares v. Mahunik, 9:05-CV-625,
2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted). After conducting
its review, "the Court may 'accept, reject, or modify, in whole or in part, the . . . recommendations
made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)(1)(C)).
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The Court has reviewed Magistrate Judge Peebles' July 26, 2017 Report and
Recommendation for clear error and manifest injustice; and, finding none, the Court hereby
ORDERS that Magistrate Judge Peebles' July 26, 2017 Report and Recommendation, see
Dkt. No. 23, is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant's motion to dismiss Plaintiff's complaint for failure to prosecute
his claims, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, see Dkt. No. 22, is
GRANTED; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED in all respects; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: August 17, 2017
Syracuse, New York

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