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Kilmartin v. Schaffer

United States District Court, Second Circuit

November 1, 2013

MYRON J. KILMARTIN, Plaintiff,
v.
SCHAFFER, Investigator, Defendant.

MYRON J. KILMARTIN, 07-B-0052, Wende Correctional Facility, Alden, New York 14004[1] Plaintiff pro se.

OFFICE OF THERESA J. PULEO, MURRAY S. BROWER, ESQ., Albany, New York, Attorneys for Defendant.

ORDER

FREDERICK J. SCULLIN, Jr., Senior District Judge.

Plaintiff, a former inmate in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), brought this action pursuant to 42 U.S.C. § 1983, alleging that Defendant Schaffer violated his constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution. See Dkt. No. 1-1, Complaint. Defendant Schaffer moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Dkt. No. 18. Plaintiff did not file any papers in opposition to that motion. In a Report-Recommendation and Order dated October 9, 2013;, Magistrate Judge Hummel recommended that this Court deny Defendant's motion. See Dkt. No. 22 at 14. The parties did not file any objections to that recommendation.

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, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted). After conducting that 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 Hummel's October 9, 2013 Report-Recommendation and Order for clear error and manifest injustice; and, finding none, the Court hereby

ORDERS that Magistrate Judge Hummel's October 9, 2013 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Defendant's motion for summary judgment is DENIED; and the Court further

ORDERS that, if Plaintiff does not notify the Court and opposing counsel, in writing, of his current address within thirty (30) days of the date of this Order, the Court will dismiss this case for failure to prosecute and for failure to notify the Court and opposing counsel of a change of address in accordance with L.R. 10.1(c)(2) and this Court's September 10, 2012 Memorandum-Decision and Order. See Dkt. No. 7, Memorandum-Decision and Order dated September 10, 2012, at 7 ("Plaintiff is also required to promptly notify, in writing, the Clerk's Office and all parties or their counsel of any change in Plaintiff's address; his failure to do so may result in the dismissal of this action."); 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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