Ashby v. Murphy et al
Filing
42
DECISION & ORDER adopting 37 Report and Recommendations. The action against defendant Edward J. Silvestrini is DISMISSED, and the Clerk of Court shall remove Silvestrini as a party in this case. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 10/5/2020. (RFI) (Chambers has mailed a copy of this decision and order to the pro se plaintiff).-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEVIN ASHBY,
Plaintiff,
v.
17-CV-1099-LJV-JJM
DECISION & ORDER
JAMES A. MURPHY, III, et al.,
Defendants.
On October 30, 2017, the plaintiff, Kevin Ashby, commenced this action under 42
U.S.C. § 1983. Docket Item 1. On December 4, 2019, this Court consolidated this
action with two other actions that Ashby had pending in this Court. Docket Item 6.
On March 9, 2020, this Court referred the consolidated action to United States
Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. §
636(b)(1)(A) and (B). Docket Item 18.
On May 11, 2020, the defendants’ counsel notified the Court that defendant
Edward J. Silvestrini had died on November 19, 2016. Docket Item 30. On July 10,
2020, Judge McCarthy issued a text order stating that “[p]ursuant to Fed. R. Civ. P.
25(a)(1), a motion for substitution shall be filed by August 10, 2020, failing which [he
would] recommend that the action against defendant Silvestrini be dismissed.” Docket
Item 33. Neither party filed a notice of substitution, and the time to do so passed.
On August 18, 2020, Judge McCarthy issued a Report and Recommendation
(“R&R”) finding that the action against Silvestrini should be dismissed. Docket Item 37.
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). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 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 McCarthy's R&R and the defendants’ submission to him. Based on that
review and the absence of any objections, the Court accepts and adopts
Judge McCarthy’s recommendation to dismiss the action against defendant Silvestrini.
For the reasons stated above and in the R&R, the action against defendant
Silvestrini is DISMISSED, and the Clerk of Court shall remove Silvestrini as a party in
this case. The case is referred back to Judge McCarthy for further proceedings
consistent with the referral order of March 9, 2020, Docket Item 18.
SO ORDERED.
Dated:
October 5, 2020
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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