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Ronald Edward v. Keith Dubray

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


July 28, 2011

RONALD EDWARD WILLIAMS, PLAINTIFF,
v.
KEITH DUBRAY, ACTING DIRECTOR, SPECIAL HOUSING, DEFENDANT.

The opinion of the court was delivered by: Scullin, Senior Judge

(FJS/DRH)

ORDER

Plaintiff filed his initial complaint in this action on or about November 19, 2009. See Dkt. No. 1. In a Memorandum-Decision and Order dated February 5, 2010, the Court ordered Plaintiff to file an amended complaint and advised him that allegations relating to his disciplinary sanction would be barred pursuant to the favorable termination rule of Heck v. Humphrey, 512 U.S. 477 (1994), "unless Plaintiff 'abandon[ed], not just now, but also in any future proceeding, any claims he [might] have with respect to the duration of his confinement that [arose] out of the proceeding he [was] attacking in [this] § 1983 suit.'" See Dkt. No. 6 at 10 (quotation omitted).

On or about April 29, 2010, Plaintiff filed his amended complaint. See Dkt. No. 9. In that amended complaint, Plaintiff stated that he "waive[d] for all times all claims in this action relating to disciplinary sanctions affecting the duration of his confinement." See id. at ¶ 14. By Memorandum-Decision and Order dated July 27, 2010, the Court found that "the allegations of the amended complaint [were] sufficient to warrant a response from Defendant Dubray." See Dkt. No. 12 at 8.

On September 24, 2010, Defendant Dubray filed a motion to dismiss. See Dkt. No. 18. Plaintiff opposed that motion. See Dkt. No. 20. On July 13, 2011, Magistrate Judge Homer issued a Report-Recommendation and Order, in which he recommended that the Court deny Defendant's motion to dismiss. See Dkt. No. 28 at 12. Neither party filed any objections to this recommendation.*fn1

When a party does not object to a magistrate judge's report-recommendation, the court reviews that report-recommendation for clear error or manifest injustice. See Linares v. Mahunik, 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted). After conducting this review, "the Court may 'accept, reject, or modify, in whole or in part, the . . . recommendations made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)(1)(C)).

The Court has reviewed Magistrate Judge Homer's July 13, 2011 Report- Recommendation and Order for clear error and manifest injustice; and, finding none, the Court hereby

ORDERS that Magistrate Judge Homer's July 13, 2011 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Defendant's motion to dismiss is DENIED; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.


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