Libbett v. Correctional Medical Service et al

Filing 18

-CLERK TO FOLLOW UP-ORDER adopting Report and Recommendation re 17 . Plaintiff's complaint is dismissed with prejudice as barred by the sttute of limitations. Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 2/13/2013. (JMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CARDELL LIBBETT, 08-B-3139,
Plaintiff,
v.

ORDER
09-CV-82A

SUPERINTENDENT OF ATTICA
CORRECTIONAL FACILITY,
SERGEANT COCHRAN and
R.N. HAWLEY,
Defendants.

This case was referred to Magistrate Judge H. Kenneth Schroeder, Jr.
pursuant to 28 U.S.C. § 636(b)(1). By Decision and Order of the Magistrate
Judge entered March 25, 2011, plaintiff was directed to show cause why this
matter should not be dismissed as barred by the three year statute of limitations
applicable to actions commenced pursuant to 42 U.S.C. sec 1983. In response
to the Court’s Order to Show Cause, plaintiff explains that he failed to file suit in
federal court earlier because his attorney in a state court action involving this
incident misled him as to the status of a settlement agreement and failed to file
the federal court action.
On January 14, 2013, Magistrate Judge Schroeder filed a Report and
Recommendation recommending that plaintiff’s complaint be dismissed with
prejudice as barred by the statute of limitations.

The Court has carefully reviewed the Report and Recommendation, the
record in this case, and the pleadings and materials submitted by the parties, and no
objections having been timely filed, it is hereby
ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons
set forth in Magistrate Judge Schroeder ’s Report and Recommendation, plaintiff’s
complaint is dismissed with prejudice as barred by the statute of limitations.
The Clerk of Court shall take all steps necessary to close the case.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: February 13, 2013

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