Daughtrey v. Department of Corrections

Filing 24

OPINION AND ORDER. For the reasons stated herein, the Court adopts the Report (Dkt. 19) in full. Plaintiff's Complaint is hereby DISMISSED. The Clerk of Court is directed to terminate the case. (Signed by Judge Paul A. Engelmayer on 10/11/2012) (rjm)

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USDC SI)'\"Y 00((\11'1 Ell II{IJ.\ICALLY FILED DO< "; DATI:. .FILED: / OilY/I')? UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------------)( GREGORY DAUGHTREY, Plaintiff, 11 Civ. 9693 (PAE) (JCF) -v- OPINION & ORDER CITY OF NEW YORK, Defendant. ------------------------------------------------------------------------)( PAUL A. ENGELMAYER, District Judge: Before the Court is the June 29,2012, Report and Recommendation of Magistrate Judge James C. Francis IV that the Court dismiss plaintiff's Complaint for failure to exhaust administrative remedies (the "Report"). For the reasons that follow, the Court adopts the Report in full, and plaintiffs Complaint is dismissed. I. Background Daughtrey, a plaintiffpro se, filed his Complaint on December 29,2011, pursuant to 42 U.S.C. § 1983. Dkt. 2. Daughtrey alleges that the City of New York ("the City") failed to provide him with an adequately sized bed and that he suffered injuries as a result. See Compi. at 5. On April 23, 2012, the City moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 10-12. Daughtrey did not oppose the motion to dismiss. On June 29, 2012, Judge Francis issued the Report, recommending that the City's request to dismiss the case be granted because of Daughtrey's failure to exhaust all available administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. [1] § 1997e(a). Dkt. 19. The deadline for Daughtrey to file objections to the Report was July 13, 2012. He has filed no objections. II. Discussion In reviewing a Report and Recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.c. § 636(b)(1)(C). To accept those portions ofthe report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Carlson v. Dep't ofJustice, No. 10 Civ. 5149 (PAE) (KNF), 2012 WL 928124, at *1 (S.D.N.Y. Mar. 19,2012) (citation omitted); see also Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). Daughtrey has proffered no objections to the Report, so a review for clear error is appropriate. Careful review of the Report reveals no facial error in its conclusions; the Report is therefore adopted in its entirety. Because the Report explicitly states that "[f]ailure to file timely objections will preclude appellate review," Report at 8, Daughtrey's failure to object operates as a waiver of appellate review. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (citing Small v. Sec'y ofHealth & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)). CONCLUSION For the reasons stated herein, the Court adopts the Report (Dkt. 19) in full. Plaintiffs Complaint is hereby DISMISSED. The Clerk of Court is directed to terminate the case. SO ORDERED. pa~~n!;a£~ United States District Judge Dated: October 11,2012 New York, New York [2]

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