Osborne v. Montgomery et al

Filing 59

ORDER ADOPTING REPORT AND RECOMMENDATION for 58 Report and Recommendations. the Court adopts the R&R in its entirety. Defendants' motion to dismiss Plaintiff's amended complaint for failure to prosecute is granted. The Clerk of Court is directed to terminate the motion at ECF No. 56 and to terminate the action. (Signed by Judge Nelson Stephen Roman on 5/1/2018) Copies Mailed By Chambers. (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEVEN OSBORN,
Plaintiffs,

15-CV-9730 (NSR)(LMS)

-against-

ORDER ADOPTING REPORT
AND RECOMMENDATION

SGT. MONTGOMERY, et al.,
Defendants.

NELSON S. ROMAN, United States District Judge:
Plaintiff Steven Osborn, a pro se inmate, commenced this action pursuant to 42 U.S.C. §
1983 alleging various violations of his constitutional rights against employees of the Fishkill
Correctional facility. Now before the Comt, is a Report and Recommendation ("R&R") issued by
the Honorable Magistrate Judge Lisa M. Smith ("MJ Smith") recommending that this Comt grant
Defendants' motion to dismiss the operative complaint for failure to prosecute. For the following
reasons, the Comt adopts the R&R and the motion to dismiss is granted.
Plaintiff filed his initial complaint on or about December 10, 2015, alleging claims
sounding in violations of 42 U.S.C. § 1983. ECF No. 2. By order dated February 29, 2016, Plaintiff
was granted leave to file an amended complaint. ECF No. 13. On April 8, 2016, Plaintiff filed an
amended complaint. ECF No.16. On November 3, 2016, Plaintiff filed a second amended
complaint, which is the operative complaint. ECF No. 33. Following Defendants' appearance and
filing of an answer, the action was referred to MJ Smith for all pre-trial matters. ECF No. 52.
Following the reference, MJ Smith sent all the parties multiple scheduling notices and set the
matter down for multiple conferences. Despite no longer residing at a correctional facility, Plaintiff

.,tfSDC SDNY apJ2~arjn sourt,..The Comt also notes that Plaintiff was reminded of his ongoing obligation
JaiJ.1;gJo
II
'."::c..

//nocu~m
I

l<l li'C"1-RONICAL
-~-

;/ TiOC /!:

I;

_ /_i

LY FF E,·, :
·--~-...../---~ v /i

Jl

rl, l'Z0,s-· · ·

· ·,1Ts:'1L'~D:
--.. ----~--

.

~~

Copies mailcclffi!:=I <l

W\ l[a.J

a~J

Chambers ofNclson S. Roman, U.S.D.J.

Nt.u.J Vod1. \'YI', \Is,•"-'
"'I
Q

dJ,.,..e,,\'.,Os~

to notify the court of any change in his residence. ECF No. 46. By Notice of Motion dated January
22, 2018, Defendants move to dismiss the complaint for failure to prosecute. ECF No. 56-57.
Plaintiff has not opposed the motion.

In reviewing an R&R, 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). A
district court "must determine de nova any pait of the magistrate judge's disposition that has been
properly objected to." Fed. R. Civ. P. 72(b)(3); see also United States v. Male Juvenile, 121 F.3d
34, 38 (2d Cir. 1997). To accept those portions of the repo1t to which no timely objection has been
made, however, a district court need only satisfy itself that there is no clear e1Tor on the face of the
record. See, e.g., Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). This
clearly e1Toneous standard also applies when a paity makes only conclusory or general objections,
or simply reiterates his original arguments. See, e.g., Ortiz v. Barkley, 558 F. Supp. 2d 444,451
(S.D.N.Y. 2008).
In the present case, the R&R advised the paities that they had 14 days from service of the

R&R to file any objections, and warned that failure to timely file such objections would result in
waiver of any right to object. In addition, it expressly called the paities' attention to Rule 72 of
the Federal Rules of Civil Procedure and Title 28 United States Code Section 636(b)(l).
Nevertheless, as of the date of this Order, no objections have been filed and no request for an
extension of time to object has been made. Accordingly, the parties have waived the right to object
to the Report and Recommendation or to obtain appellate review. See Frank v. Johnson, 968 F.2d
298,300 (2d Cir. 1992); see also Caidor v. Onondaga County, 517 F.3d 601 (2d Cir. 2008).
Despite the waiver, the Court has reviewed Defendants' application and the R&R,
unguided by objections, and finds the R&R to be well reasoned and grounded in fact and law.
Accordingly, the Court adopts the R&R in its entirety. Defendants' motion to dismiss Plaintiffs

amended complaint for failure to prosecute is granted.
The Clerk of Comt is directed to terminate the motion at ECF No. 56 and to terminate the
action.

Dated:

May 01, 2018
White Plains, New York

SO ORDERED:

*L~
United States District Judge