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Earl Nash v. Messima

August 30, 2011

EARL NASH, PLAINTIFF,
v.
MESSIMA, CORRECTIONAL OFFICER, COXSACKIE CORRECTIONAL FACILITY; KONFER, CORRECTIONAL OFFICER, COXSACKIE CORRECTIONAL FACILITY;
AND MCDERMOTT, LT., COXSACKIE CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this pro se prisoner civil rights action filed by Earl Nash ("Plaintiff") against the three above-named individuals ("Defendants"), are the following: (1) Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 19); and (2) United States Magistrate Judge George H. Lowe's Report-Recommendation recommending that Defendants' motion be granted and that, in the alternative, Plaintiff's Complaint be dismissed for failure to prosecute and obey a Court Order and/or the Court's Local Rules pursuant to Fed. R. Civ. P. 41(b) (Dkt. No. 22). For the reasons set forth below, the Report-Recommendation is accepted and adopted; Defendants' motion is granted; and Plaintiff's Complaint is dismissed in its entirety with prejudice pursuant to Fed. R. Civ. P. 56 and, in the alternative, pursuant to Fed. R. Civ. P. 41(b).

I. RELEVANT BACKGROUND

Plaintiff filed his Complaint in this action on March 16, 2010. (Dkt. No. 1.) Construed with the utmost of liberality, Plaintiff's Complaint alleges that, while he was incarcerated at Coxsackie Correctional Facility in Coxsackie, New York, on August 18, 2009, Defendants subjected him to excessive force in violation of the Eighth Amendment. (See generally Dkt. No. 1 [Plf.'s Compl.]). Familiarity with the remaining factual allegations supporting this claim is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id. at ¶ 6.)

On March 24, 2010, the Court issued an Order that, inter alia, required Plaintiff to "promptly notify, in writing, the Clerk's Office and all parties or their counsel of any change in [his] address; his failure to do so may result in the dismissal of this action." (Dkt. No. 4 at 3) (emphasis in original). This Order echoed Local Rule 10.1(c)(2) of the Local Rules of Practice for this Court, which expressly provides that "All . . . pro se litigants must immediately notify the Court of any change of address." N.D.N.Y. L.R. 10.1(c)(2) (emphasis in original).

On June 4, 2010, Defendants filed an Answer. (Dkt. No. 12.) On June 22, 2010, Defendants filed an Amended Answer in which they asserted a counterclaim "for assault and battery to defend and offset any liability the defendants may otherwise incur on plaintiff's main claims." (Dkt. No. 14, at 3-4.)

On December 30, 2010, Defendants filed a motion for summary judgment seeking dismissal of Plaintiff's Complaint based on his failure to exhaust his administrative remedies prior to commencing this action. (Dkt. No. 19.) Despite being specifically advised of the consequences for failing to do so (see Dkt. No. 19, at 1-3), Plaintiff did not submit a response to Defendants' motion (see generally Docket Sheet).

Indeed, on February 28, 2011, a Notice of Electronic Filing (sent by the Court to Plaintiff on February 17, 2011) was returned to the Court by Marcy Correctional Facility as undeliverable, with a notation on the envelope stating that Plaintiff had been "released" on February 3, 2011, and had "left no forward[ing] [address]." (Dkt. No. 21.) A review of the New York State Department of Correctional Services website reveals that Plaintiff was released to the New York State Division of Parole on February 3, 2011. See New York Dept. of Corr. & Cmty. Supervision's Inmate Lookup Service, http://nysdocslookup.docs.state.ny.us (last visited July 11, 2011).

On July 11, 2011, Magistrate Judge Lowe issued a Report-Recommendation recommending that (1) Defendants' motion for summary judgment be granted and Plaintiff's Complaint be dismissed with prejudice pursuant to Fed. R. Civ. P. 56 because the undisputed record evidence establishes that he failed to exhaust his administrative remedies before commencing this action, and that "no special circumstances caused Plaintiff to fail to grieve in the normally required way[,]" and (2) alternatively, Plaintiff's Complaint be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) because has failed to (a) prosecute this action, and/or (b) comply with a Court Order and/or the Court's Local Rules requiring him to provide written notice to the Clerk's Office and all parties or their counsel of any change in his address. (Dkt. No. 22.)

Plaintiff has not filed an Objection to the Report-Recommendation, and the time in which to do so has expired. (See generally Docket Sheet.) Furthermore, no change of address has been filed by Plaintiff at any point since February 3, 2011. (Id.) The Court notes that, on July 15, 2011, Magistrate Judge Lowe's Report-Recommendation (sent by the Court to Plaintiff on July 11, 2011) was returned to the Court by Marcy Correctional Facility as undeliverable, with a notation on the envelope stating that Plaintiff had been "released" on February 3, 2011. (Dkt. No. 23.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1

When only general objections are made to a magistrate judge's report-recommendation, or where the objecting party merely reiterates the same arguments taken in its original papers submitted to the magistrate judge, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, ...


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