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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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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