Gomez v. Ercole et al

Filing 120

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS OF THE HON. JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE for 118 Report and Recommendations, 91 Motion to Dismiss, filed by C.O. J. Thorpe, R. Koskowski, Sgt. L. Fitch, C.O. M. Wesley, C.O. W. Monzon, Sgt. S. Murphy, R.N. S. Fila, A.D.S.P. L. Cecilia, C.O. C. Mell, C.O. Forosky, C.O. Brothers, Robert E. Ercole, C.O. D. Benitez, Jr., R. Wahlquist, C.O. J. Martin, C.O. M. Speed, Rabbi Chill: The court acc epts it as its opinion and adopts all of the Recommendations. The Clerk of the Court is directed to dismiss all claims against all defendants except for the Eighth Amendment Claim against defendant Koskowski and the First Amendment Claim against D efendant Chill. The caption in this case shall be amended to read as further set forth in this order. The new caption reflects the defendant's full name. I had previously granted his request to allow his name to be replaced by his initials (See Docket # 116), but in view of the fact that his sister sent a letter to the court calling Mr. Gomez by his full name I hereby rescind that order. (Signed by Judge Colleen McMahon on 6/18/2014) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JCG,
Plaintiff,
-against-

11 Civ. 6844 (CM)(JLC)

ROBERT E. ERCOLE, et al.,
Defendants.

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS
OF THE HON. JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE
McMahon, J.:
On April 24, 2014, the court received the comprehensive, 66 page Report from the
learned Magistrate Judge, recommending that this case proceed only on Plaintiff's First
Amendment claim against Defendant Chill and his Eighth Amendment claim against Defendant
Koskowski, and be otherwise dismissed without leave to amend (the plaintiff having already
amended the complaint once, and further amendment being found to be futile). The court is
grateful for the time an obvious care with which the Magistrate Judge has treated this complex
complaint.
The time to file objections to the report expired fourteen days after the Report issued, or
on May 24, 2014. Plaintiff filed neither an objection nor a request for an extension of time. The
court instead received a letter on May 23, 2014 from Mr. Gomez's sister, indicating that her
brother has not been at Marcy Correctional Facility (his address on the docket) since May 1,
when he was hospitalized "for an indefinite amount of time." Obviously, Mr. Gomez received
the Report or he would not have caused his sister to communicate with the court.
The court has waited patiently for further word from Mr. Gomez. Hearing nothing, my
Deputy Clerk called the Marcy Correctional Facility and confirmed that Mr. Gomez was
Midstate Correctional Facility Infirmary from May 8 through May 20, 2014. He was then
returned to Marcy, where he has been ever since. He was back at Marcy by the time his sister
sent her letter.

CopieB/faxed/handcd to counsel on

Ji ti1 N

I have heard nothing from plaintiff since he returned to March on May 20. His extended
silence is evidence that he has no objection to the Report - or at least that he has filed to file one.
The Defendants have also filed no objection.
I have reviewed the Report. The court accepts it as its opinion and adopts all of the
Recommendations. The Clerk of the Court is directed to dismiss all claims against all defendants
except for the Eighth Amendment Claim against defendant Koskowski and the First Amendment
Claim against Defendant Chill. The caption in this case shall be amended to read as follows:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Juan C. Gomez,
Plaintiff,
11 Civ. 6844 (CM)(JLC)

-againstRabbi Chill and Former Deputy Superintendent
of Security R. Koskowski,
Defendants.
x

The new caption reflects the defendant's full name. I had previously granted his request to allow
his name to be replaced by his initials (See Docket # 116), but in view of the fact that his sister
sent a letter to the court calling Mr. Gomez by his full name I hereby rescind that order.
This constitutes the decision and order of the court
Dated: June 18, 2014

U.S.D.J.
BY ECF TO COUNSEL FOR DEFENDANTS
BY FIRST CLASS MAIL TO PLAINTIFF