that he is unable to proceed with the action.
Dismissal of this action may be warranted under Fed.R.Civ.P.
41(a)(2) given plaintiff's statement in his May 24, 2001 letter
that he is unwilling to continue the action.*fn1 However,
since the court has defendant's unopposed motion for summary
judgment before it, a decision on that motion is appropriate.
A grant of summary judgment is proper "`if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.'" R.B. Ventures,
Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting
Fed.R.Civ.P. 56(c)). Rule 56 mandates the entry of summary
judgment against any party "who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Particularly
relevant here, an unopposed summary judgment motion in a pro
se action may be granted where (1) the pro se litigant has
received adequate notice that failure to file any opposition may
result in the entry of summary judgment without trial, and (2)
the court is satisfied that "the facts as to which there is no
genuine dispute show that the moving party is entitled to
summary judgment as a matter of law." Champion v. Artuz,
76 F.3d 483, 485 (2d Cir. 1996).
Magistrate Judge Sharpe's April 20, 2001 order thoroughly
explained both the procedures plaintiff should follow if he
wished to proceed pro se and oppose the summary judgment
motion, and the consequences that would result if plaintiff
failed to timely submit opposition papers. Plaintiff thus
received adequate notice regarding what effect any failure to
oppose the summary judgment motion would have on the action.
Turning to defendant's motion, the court determines that
summary judgment must be granted as a matter of law. Defendant
has provided undisputed facts establishing that it that it had
no duty to supervise plaintiff, that it had no control of
plaintiffs work site, and that it fully complied with all the
applicable rules and regulations regarding the operation of the
train. No genuine material issue of fact thus exists as to
whether defendant owed a duty to plaintiff and, even assuming
arguendo defendant owed plaintiff a duty, that defendant
breached that duty. Accordingly, defendant's motion for summary
judgment is granted.
Defendant's motion for summary judgment is GRANTED and the
amended complaint in this action is DISMISSED, without costs.
IT IS SO ORDERED.