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Owen Fitzgerald, Charles Morine, and David Usher v. the County of Washington; Roger Leclaire

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


September 1, 2011

OWEN FITZGERALD, CHARLES MORINE, AND DAVID USHER, PLAINTIFFS,
v.
THE COUNTY OF WASHINGTON; ROGER LECLAIRE, SHERIFF, COUNTY OF WASHINGTON; SCOTT PATTEN, ADMINISTRATOR, WASHINGTON COUNTY JAIL; DR. ALBERT PAOLANO, MEDICAL DIRECTOR AND PHYSICIAN, WASHINGTON COUNTY JAIL; JULIA BEECHER, NURSE, WASHINGTON COUNTY JAIL; AND GEORGE SMITH, DEFENDANTS.

The opinion of the court was delivered by: P aolano Mae A. D'Agostino, U.S. District Judge:

ORDER

Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Plaintiffs allege that, while incarcerated at the Washington County Jail, they developed methicillin-resistant staphylococcus aureus ("MRSA"). Plaintiffs claim that defendants were deliberately indifferent to their serious medical needs in violation of the Eighth Amendment and that, in violation of the Rehabilitation Act, defendants failed "to provide proper facilities for isolation of inmates with communicable disease, fail[ed] to enact, follow and enforce policies for diagnosis and treatment of persons with communicable infection and disease, fail[ed] to provide basic sanitation and necessary medical care for persons with infections and communicable disease, [and] fail[ed] to properly maintain and repair prison facilities for food service, showers and ventilation systems to prevent proliferation of harmful bacteria[.]" See Dkt. No. 43 at ¶¶ 31, 43.

In a Report-Recommendation dated August 9, 2011, Magistrate Judge Lowe recommended that the Court dismiss plaintiff Fitzgerald's claims for his failure to prosecute and failure to comply with orders of the court, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Dkt. No. 91. Magistrate Judge Lowe cited to a multitude of examples of plaintiff Fitzgerald's failure to prosecute this case diligently and several court orders with which he has failed to comply. See id. at 2-5. Most recently, plaintiff Fitzgerald failed to appear at his rescheduled deposition; the Order for which warned him that his failure to appear would result in Magistrate Judge Lowe recommending sanctions, "including, but without limitation, the sanction of dismissal of Mr. Fitzgerald's claims." See Dkt. No. 84 at 2. Neither party objected to Magistrate Judge Lowe's August 9, 2011 Report-Recommendation.

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." 28 U.S.C. § 636(b)(1). When a party fails to make specific objections, however, the court reviews the magistrate judge's report for clear error. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008); see also Gamble v. Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations omitted). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

Having reviewed Magistrate Judge Lowe's August 9, 2011 Report-Recommendation and the applicable law, the Court concludes that Magistrate Judge Lowe correctly determined that the Court should dismiss with prejudice plaintiff Fitzgerald's claims, in light of his failure to prosecute this action and his failure to comply with the court's orders.*fn2

Accordingly, the Court hereby

ORDERS that Magistrate Judge Lowe's August 9, 2011 Report-Recommendation is ADOPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that plaintiff Fitzgerald's claims, as set forth in the Amended Complaint (Dkt. No. 43), are DISMISSED with prejudice; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in compliance with the Local Rules.

IT IS SO ORDERED.

Albany, New York


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