Holmes v. Pallito et al

Filing 16

OPINION AND ORDER ADOPTING 15 REPORT AND RECOMMENDATION granting 14 Defendants' MOTION to Dismiss. Plaintiff may file an Amended Complaint within 30 days of this Order. Failure to file a timely Amended Complaint will result in the dismissal of this case. Signed by Chief Judge Christina Reiss on 12/19/2012. (pac)

U.S. DlSH:!C

DISTRICT C
Ftt.E

UNITED STATES DISTRICT COURT 2012 DEC 19 PM 4:
FOR THE
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DISTRICT OF VERMONT

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BY _ _ _-!l.~~~-D}:PUl'Y CLERK

Ronald L Holmes,

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Plaintiff,

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v.

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Case No. S:12-cv-183

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Andrew Pallito, Commissioner,
Vermont Department of Corrections;
Carl Davis, Superintendent, Northern
State Correctional Facility; Mike
Charbonneau; CO I Prue,

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Defendants.

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OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION

(Docs. 14, IS)

This matter came before the court for a review of the Magistrate Judge's
November 28,2012 Report and Recommendation ("R & R"). Defendants, who are
officials at the Vermont Department of Corrections ("DOC"), have moved to dismiss
Plaintiff Ronald Holmes's retaliation claims, in which he alleges that he was subjected to
excessive force because of the racism and prejudice claims and grievances he asserted
while incarcerated at a Vermont state correctional facility. In his Complaint, Plaintiff
seeks injunctive relief in the form of an order "protecting [him] from [DOC] retaliation"
for bringing this action. (Doc. 3 at 6.) Neither party has objected to the R & R, and the
deadline for doing so has expired.
A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. FED. R.
CIY. P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 40S (2d Cir.
1999). The district judge 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); accord
Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual

or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). When no timely objection is filed, the court need only satisfY itself that there
is no clear error on the face of the record in order to accept the recommendation. See
Campbell v. United States Dist. Court, 501 F.2d 196,206 (9th Cir. 1974), cert. denied,

419 U.S. 879 (1974).
In his seven page R & R, the Magistrate Judge carefully reviewed the factual
record and the motion before the court and determined that the Defendants' Motion to
Dismiss should be granted with regard to Plaintiff s request for prospective injunctive
relief because in light of Plaintiffs release from prison, injunctive relief would not
redress any injury Plaintiff has suffered or is likely to suffer in the future. Accordingly,
the Magistrate Judge recommended that Plaintiffs claims be denied as moot. The
Magistrate Judge also recommended the court deny Plaintiff s request for counsel on
mootness grounds. Finally, the Magistrate Judge found that leave to amend should be
granted because Plaintiff "may be able to establish this court's jurisdiction over his
claims ifhe asks for a proper remedy[.]" (Doc. 15 at 6.)
The court agrees with the Magistrate Judge's conclusions. For the foregoing
reasons, the court hereby ADOPTS the Magistrate Judge's R & R as the court's Order
and Opinion, and GRANTS Defendants' Motion to Dismiss. If Mr. Holmes elects to file
an Amended Complaint, he must do so within 30 days of this Order. Failure to file a
timely Amended Complaint will result in the dismissal of this case.
SO ORDERED.
Dated at Rutland, in the District of Vermont, this

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/1 day of December, 2012.

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United States District Court
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