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WALLACE v. CONROY

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


November 12, 1996

HOWARD WALLACE, Plaintiff, against BRIAN CONROY, Warden of A.R.D.C. c-74 of Rikers Island East Elmhurst N.Y., Defendant.

The opinion of the court was delivered by: LEISURE

MEMORANDUM ORDER

 LEISURE, District Judge :

 Plaintiff pro se Howard Wallace brought this action under 42 U.S.C. § 1983, alleging a violation of his constitutional rights in defendant's failure to complete plaintiff's transfer to state custody within ten to fourteen days of his sentencing. Defendant moved to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing (1) that plaintiff has no protected liberty interest in being transferred within a specified period of time; (2) that plaintiff failed to state a valid claim against defendant, sued in his official capacity; and (3) that plaintiff's claim is at most a negligence claim and thus is not cognizable under § 1983.

 This Court referred this action to the Honorable Theodore H. Katz, United States Magistrate Judge, for preparation of a report and recommendation on defendant's motion to dismiss. On September 17, 1996, Judge Katz issued a Report and Recommendation (the "Report") that this Court grant defendant's motion and dismiss the complaint with prejudice. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure, the parties have ten (10) days to file written objections to a report and recommendation after being served with a copy. Plaintiff requested, and was granted, an extension of time to file objections. By an Order of this Court dated October 1, 1996, plaintiff was directed to file objections by November 4, 1996. Plaintiff has failed to file objections within the specified time or to request a further extension. Furthermore, the Court has reviewed the Report and finds that it is legally correct and proper. The Court therefore adopts the Report in its entirety.

 Accordingly, for the reasons stated by Judge Katz in the Report, defendant's motion to dismiss the § 1983 claim is HEREBY GRANTED; the complaint is dismissed with prejudice, and therefore leave to amend the complaint is HEREBY DENIED.

 SO ORDERED.

 New York, New York

 November 12, 1996

 Peter K. Leisure

 U.S.D.J.

19961112

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