Austin v. Lynch et al
Filing
29
OPINION AND ORDER. The Court has reviewed the Report and Recommendation and finds it to be well-reasoned and free of any clear error on the face of the record. The Court thus adopts the Report and Recommendation in its entirety. Accordingly, this act ion is dismissed without prejudice. The Court shall not collect any fees for this case, nor shall any fees for this case be encumbered by any facility that holds Plaintiff in custody. The Court certifies, pursuant to 28 U.S.C. § 1951(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeaL See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to close this case. (Signed by Judge J. Paul Oetken on 12/19/2011) (rjm)
USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELECTRONICALLY FILED
--------------------------------------------------------------)(
DOC.:
DOCUMENT
DATI nu==D=-:'2'Or-OME:!'fooC-2'1f1tQ++Jf-"
KENRICK AUSTIN,
Plaintiff,
10-CV-7534 (JPO)(GWG)
-againstOPINION AND ORDER
C.O. JOHN E. LYNCH et al.,
Defendants.
)(
J. PAUL OETKEN, District Judge:
I. Background
Kenrick Austin, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983
against employees of the New York State Department of Corrections ("DOC"). We assume the
parties' familiarity with the underlying facts and procedural history of this case.
On November 16, 2011, lnna Reznik, Assistant Attorney General, notified the Court that
Austin had been discharged from DOC's custody and deported to Jamaica. On November 28,
2011, Magistrate Judge Gorenstein issued a Report and Recommendation, noting that the Court
had "specifically instructed Austin that he must inform the Court of any change of address," and
that, as Austin had failed to provide the Court with a new address, the Court had no way to
contact Austin. (Docket No. 28). Consequently, Judge Gorenstein recommended that this action
be dismissed without prejudice.
Judge Gorenstein further notified the parties that, pursuant to 28 U.S.C. § 636(b)(1) and
Rule 72(b) of the Federal Rules of Civil Procedure, the parties could serve and file any
objections to the Report and Recommendation within fourteen days, or by December 12, 2011.
Neither party filed any objections to Judge Gorenstein's Report and Recommendation.
II. Legal Standard
When no objections are filed to a Report and Recommendation, a district court need only
satisfy itself that there is no "clear error on the face of the record" in order to accept the
recommendation. Fed. R. Civ. P. neb) advisory committee's note; see also Nelson v. Smith, 618
F. Supp. 1186, 1189 (S.D.N.Y. 1985).
The Second Circuit has held that failure to timely object to a magistrate judge's report
and recommendation operates as a waiver of appellate review of the district court's order
adopting a magistrate judge's report and recommendation. See Deleon v. Strack, 234 F.3d 84,
86 (2d Cir. 2000) (citing Small v. SecyofHealth & Human Servs., 892 F.2d 15,16 (2d Cir.
1989)).
III. Analysis
The Court has reviewed the Report and Recommendation and finds it to be well-reasoned
and free of any clear error on the face of the record.
The Court thus adopts the Report and Recommendation in its entirety. Accordingly, this
action is dismissed without prejudice. The Court shall not collect any fees for this case, nor shall
any fees for this case be encumbered by any facility that holds Plaintiff in custody.
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The Court certifies, pursuant to 28 U.S.C. § 19S1(a)(3), that any appeal from this Order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeaL See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is respectfully directed to close this case.
SO ORDERED.
Dated: New York, New York
December .f-!I-, 2011
United States District Judge
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