Thomas v. Washburn et al

Filing 55

DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATION 54 . Defendant's motion to dismiss 47 is GRANTED. The complaint 11 is DISMISSED and the Clerk of the Court is instructed to close the file. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 5/8/2018. (Chambers mailed a copy of decision and order to pro se plaintiff, Robert E. Thomas at 938 County Rt 4, Ogdensburg, NY 13669). (CMD)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

Robert E. Thomas,
Plaintiff,
v.

13-CV-303
Decision & Order

James Esgrow,
Defendants.

On February 7, 2013, the plaintiff commenced this prisoner civil rights action,
alleging a deprivation of his rights under the First and Fourteenth Amendments. Docket
Item 1, 11. On March 9, 2015, the Honorable Richard J. Arcara referred this case to
United States Magistrate Judge Leslie G. Foschio for all proceedings under 28 U.S.C. §
636(b)(1)(A) and (B). Docket Item 20. The case was then transferred from Judge
Arcara to the undersigned on March 8, 2016. Docket Item 32.
On November 16, 2016, this Court adopted Judge Foschio’s Report and
Recommendation (“R&R”) and dismissed this action against all but one defendant.
On March 23, 2017, the remaining defendant, James Esgrow, moved to dismiss.
Docket Item 47. On March 1, 2018, Judge Foschio issued a second R&R, finding that
the defendant's motion should be granted and that the Clerk of Court should close the
file. Docket Item 54. The parties did not object to the R&R, and the time to do so now
has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district court

must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which objection is made. 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 requires a district court to review the recommendation of a magistrate
judge to which no objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50
(1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge Foschio's R&R. Based on that review and the absence of any
objections, the Court accepts and adopts Judge Foschio's recommendation to grant the
defendant's motion.
For the reasons stated above and in the R&R, Esgrow’s motion to dismiss,
Docket Item 47, is GRANTED. The complaint, Docket Item 11, is dismissed; and the
Clerk of the Court is instructed to close the file.

SO ORDERED.
Dated:

May 8, 2018
Buffalo, New York

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

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