Buckner v. Ponte et al

Filing 17

ORDER ADOPTING REPORT & RECOMMENDATION for 15 Report and Recommendations. Defendants' motion to dismiss is GRANTED. As noted above, Plaintiff did not file an opposition to the motion to dismiss or objections to the R&R. Nonetheless, becaus e Plaintiff is proceeding pro se, the Court will permit Plaintiff, if he chooses, to file an amended complaint on or before February 9, 2018. Plaintiff is reminded, however, that pro se litigants, like all litigants, are required to submit only ple adings that are supported by fact and law. Breach of this duty may result in sanctions, including an award of attorneys' fees to Defendants. Fed. R. Civ. P. 11(b), (c). Failure to file an amended complaint will result in dismissal of this act ion with prejudice. The Court certifies under 28 U.S.C. § 1915(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 purposes of an appeal. Cf. Coppedge v. United States , 369 U.S. 438, 444-45 (1962) (holding that appellant demonstrates good faith when seeking review of a non-frivolous issue). The Clerk of Court is respectfully requested to close the open motion at docket entry 11. The Clerk of Court is further requested to mail a copy of this Order and the R&R to Plaintiff and note mailing on the docket. Amended Pleadings due by 2/9/2018. (Signed by Judge Valerie E. Caproni on 1/17/2018) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------ X
CHARLES BUCKNER,
:
:
:
Plaintiff,
:
:
-against:
:
JOSEPH PONTE (Commissioner) D.O.C.,
:
YOLANDA CANTY (Chief) D.O.C.,
:
JOHN DOE (Chief) D.O.C., JANE DOE
(Chief) D.O.C., and CAROLYNA SAUNDERS :
:
(Warden) D.O.C./O.B.C.C.,
:
Defendants. :
------------------------------------------------------------ X
VALERIE CAPRONI, United States District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 1/17/2018

17-CV-1952 (VEC)(RWL)
ORDER ADOPTING REPORT &
RECOMMENDATION

Plaintiff Charles Buckner, proceeding pro se, alleges that he was held on a “modified”
lock-down at the Otis Bantum Correctional Center for at least 11 days in November 2016.
Compl. (Dkt. 2) at 3, 8. Buckner alleges that the lock-down violated his First and Eighth
Amendment rights. Compl. at 3. Seeking redress, he has sued the above-captioned officials of
the New York City Department of Correction (“DOC”) and demanded $300,000 in money
damages. Compl. at 5. The Defendants moved to dismiss on the grounds that Buckner failed to
exhaust his administrative remedies, has not alleged the personal involvement of the Defendants,
cannot state a claim for punitive damages, and cannot recover money damages because he has
not alleged a physical injury. See Mem. (Dkt. 12).
The Court referred this case to Magistrate Judge Francis for general pretrial and
preparation of a report and recommendation on any dispositive motions. Dkt. 6. The Defendants
filed their motion to dismiss on June 9, 2017. Dkts. 11, 12. Buckner did not oppose or otherwise
respond to the motion. Magistrate Judge Francis issued a report and recommendation (the
“R&R”) on August 10, 2017. Dkt. 15. Notwithstanding Buckner’s failure to oppose the motion

to dismiss, it is plain from the R&R that Judge Francis carefully scrutinized the Defendants’
arguments and independently evaluated their merits. The R&R recommends that the Court grant
the motion to dismiss without prejudice because it is plain from the face of the complaint that
Buckner did not exhaust his administrative remedies – although there may be facts that would
excuse him from doing so. R&R at 6-7. Additionally, Judge Francis concluded that Buckner did
not allege the personal involvement of the Defendants or allege facts that might give rise to a
claim for compensatory damages for his Eighth Amendment claim. R&R at 8-12.
Plaintiff has not filed any objections to the R&R and his time to do so has expired.
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). When no objections are made to a magistrate judge’s report, a district court may
adopt the report so long as “there is no clear error on the face of the record.” Phillips v. Reed
Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013) (citing Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)). Failure to file timely objections to the magistrate judge’s report
constitutes a waiver of those objections in the district court and on later appeal to the United
States Court of Appeals. See Small v. Sec’y of Health & Human Servs., 892 F. 2d 15, 16 (2d Cir.
1989) (per curiam); see also Thomas v. Arn, 474 U.S. 140, 149–50 (1985) (holding that Section
636 does not require review of a magistrate’s findings if no party objects).
Because no objections to the R&R were filed, the Court reviews for “clear error.”
Phillips, 955 F. Supp. 2d at 211. Upon careful review, the Court finds no clear error in
Magistrate Judge Francis’s well-reasoned decision. Accordingly, the Court adopts the R&R in
full.

CONCLUSION
Defendants’ motion to dismiss is GRANTED. As noted above, Plaintiff did not file an
opposition to the motion to dismiss or objections to the R&R. Nonetheless, because Plaintiff is
proceeding pro se, the Court will permit Plaintiff, if he chooses, to file an amended complaint on
or before February 9, 2018. Plaintiff is reminded, however, that pro se litigants, like all
litigants, are required to submit only pleadings that are supported by fact and law. Breach of this
duty may result in sanctions, including an award of attorneys’ fees to Defendants. Fed. R. Civ. P.
11(b), (c). Failure to file an amended complaint will result in dismissal of this action with
prejudice.
The Court certifies under 28 U.S.C. § 1915(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 purposes of an
appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that appellant
demonstrates good faith when seeking review of a non-frivolous issue).
The Clerk of Court is respectfully requested to close the open motion at docket entry 11.
The Clerk of Court is further requested to mail a copy of this Order and the R&R to Plaintiff and
note mailing on the docket.
SO ORDERED.
_________________________________
____________________________
__
Date: January 17, 2018
New York, New York

VALERIE CAPRONI
United States District Judge