Smith v. WilsonSmith v. Wilson
- Reporters:
- ,
- Before:
- Mae A. D'Agostino
PAUL SMITH
00-A-2268
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
Plaintiff pro se
OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Attorneys for Defendants
OF COUNSEL:
DOUGLAS J. GOGLIA, AAG
Assistant Attorney General
Mae A. D‘Agostino, U.S. District Judge:
ORDER
On July 9, 2012, pro se Plaintiff Paul Smith commenced this action pursuant to
Currently before the Court is Defendants’ Motion for Summary Judgment in lieu of Answering Plaintiff’s Complaint, which sеeks the dismissal of Plaintiff’s claims due to Plaintiff’s alleged failure to exhaust his administrative remedies, and on thе merits for Plaintiff’s failure to plead or prove his claims. Defendants also argued that they are entitled to the defense of qualified immunity. See Dkt. No. 20-3.
In a September 11, 2013 Report and Recommendation, Magistrate Judge Randolph F. Treece recommended that Defendants’ motion be granted in its entirety. See Dkt. No. 24. Specifically, Magistrate Judge Treece found that it would be well within the court’s discretion to recommеnd dismissal of this action based upon Plaintiff’s failure to prosecute this matter and his apparent аbandonment of his claims. Plaintiff has not responded to Defendants’ motion, or any other corresрondence from this Court since October 22, 2012. See id. at 3-4. Nevertheless, Magistrate Judge Treece analyzеd Defendants’ motion on the merits and, affording Plaintiff the liberal standard owed to pro se litigants, recommended thаt Plaintiff’s complaint be dismissed. See id. at 6-18.
First, Magistrate Judge Treece recommended dismissal of Plaintiff’s ADA claim because “Defendants have produced sufficient documentary and testimonial evidence to meet their burden of establishing the absence of any genuine issue of material fact as to two of the three elements of Plaintiff’s ADA claim.” See id. at 9. Magistrate Judge Treece next recommended that the Court grant Defendants’ motion for summary judgment on Plaintiff’s Eighth Amendment cruel and unusual punishment claims since Plaintiff’s claims could not be maintained in light of Defendants’ uncontroverted evidence in support of their motion. See id. аt 16. As to Plaintiff‘s First Amendment claim, the report-recommendation found that Plaintiff’s conclusory allegatiоns
When a party files specific objections to a magistrate judge’s report-recommendation, the district court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”
A litigant’s failure to file objections to a magistrate judge’s repоrt and recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, “[a]s a rule, a party’s failurе to object to any purported error or omission in a magistrate judge‘s report waives further judiсial review of the point” (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec‘y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party‘s failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure tо object will preclude appellate review and specifically cites
Having carefully reviewed the September 11, 2013 Reрort and Recommendation and the applicable law, the Court finds that Magistrate Judge Treece correctly recommended that the Court should grant Defendants’ motion seeking summary judgment and dismissal of all claims. Magistrate Judge Treece properly determined that Plaintiff had failed to respond to Defendants’ motion after repeated attempts by this Court to warn him of the consequencеs of such failure. Moreover, Magistrate Judge Treece’s analysis of the merits of Defendants’ motion, giving special solicitude afforded to pro se litigants, appropriately recommended that this case be dismissed.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Treece’s September 11, 2013 Report and Recommendation is ADOPTED in its еntirety for the reasons stated therein; and the Court further
ORDERS that Defendants’ motion for summary judgment (Dkt. No. 20) is GRANTED in its entirety; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with Local Rules.
IT IS SO ORDERED.
Dated: September 30, 2013
Albany, New York
Mae A. D‘Agostino
U.S. District Judge