Jackson v. Conway et al

Filing 72

DECISION AND ORDER denying 62 Motion; adopting Report and Recommendations re 70 Report and Recommendations. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on July 9, 2016. (APG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOSEPH JACKSON (05-B-1287),
Plaintiff,
v.

DECISION
AND
ORDER

CHRISTOPHER MONIN and
ERIC WAGNER,

13-CV-4-V

Defendants.

The Court (Hon. Richard J. Arcara) referred this case to United States Magistrate
Judge Michael J. Roemer for all pretrial matters, including those that a magistrate judge
may hear and determine, see 28 U.S.C. § 636(b)(1)(A), and those that a magistrate
judge may hear and thereafter file a report and recommendation, see 28 U.S.C.
§ 636(b)(1)(B). See Docket Item 56. On March 8, 2016, this case was transferred from
Judge Arcara to the undersigned. Docket Item 65.

The plaintiff commenced this action under 42 U.S.C. § 1983, alleging that the
defendants violated his civil rights by searching his cell at Attica Correctional Facility
(“Attica”) and assaulting him in retaliation for grievances the plaintiff had filed against a
non-party, “Sergeant O’Connell.” See Docket Item 1. After the March 2012 cell search,
the plaintiff was transferred from Attica to Five Points Correctional Facility, then to
Southport Correctional Facility, then to Sing Sing Correctional Facility, then back to
Southport.

In January 2016, the plaintiff was transferred back to Attica, the facility at which
he claims his cell was illegally searched and he was assaulted. After he arrived there,
the plaintiff filed a one-page motion for a preliminary injunction seeking transfer to a
different correctional facility. See Docket Item 62. The defendants opposed the
plaintiff’s motion for a preliminary injunction. Docket Item 64. Judge Roemer then
issued a Report and Recommendation in which he recommended denying the plaintiff’s
motion for a preliminary injunction. See Docket Item 70. Neither side has objected to
the Report and Recommendation, and the time for filing objections has now passed.

A district court may accept, reject, or modify, in whole or in part, the findings or
recommendation of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
In doing so, the district court must conduct a de novo review of those portions of a
magistrate judge's recommendation to which an objection is raised. 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of
Civil Procedure 72 require a district court to review the recommendation of a magistrate
judge to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50
(1985).

This Court nevertheless has reviewed Judge Roemer’s Report and
Recommendation along with the underlying papers and agrees entirely with his
analysis. Because an inmate has no constitutional right to be housed in a certain
facility, this Court lacks the power to grant the requested relief. Montanye v. Haymes,
427 U.S. 236 (1976); Sher v. Coughlin, 739 F.2d 77 (2d Cir. 1984). Moreover, even if
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this Court had such power, it would not exercise it here because Jackson has not met
his burden to obtain injunctive relief.

Therefore, this Court adopts Judge Roemer’s April 13, 2016 Report and
Recommendation (Docket Item 70). For the reasons stated above and in the Report
and Recommendation, the plaintiff’s motion for a preliminary injunction (Docket Item 62)
is denied.

IT IS SO ORDERED.

Dated: July 11, 2016
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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