United States District Court, N.D. New York
July 27, 2015
HERMAN CRUZ, Plaintiff,
M. GROSSO, Defendant.
HERMAN CRUZ, Sullivan Correctional Facility, Fallsburg, New York, Plaintiff pro se.
KEVIN M. HAYDEN, AAG, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Syracuse, New York, Attorneys for Defendant.
FREDERICK J. SCULLIN, Jr., Senior District Judge.
Plaintiff filed this pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983. Defendant moved to dismiss the complaint pursuant to Rule 37(d) of the Federal Rules of Civil Procedure as a sanction for Plaintiff's failure to submit to a deposition or, alternatively, to dismiss the complaint as a sanction pursuant to Rule 11 of the Federal Rules of Civil Procedure for making a sworn material misrepresentation to the Court. See Dkt. No. 113. Plaintiff did not file an official response to the motion, but he did send the Court several letters and motions. See Dkt. Nos. 116, 117, 119, 120).
In a Report-Recommendation and Order dated July 6, 2015, Magistrate Judge Dancks recommended that the Court grant Defendant's motion to dismiss Plaintiff's complaint without prejudice as a sanction for his failure to submit to a deposition. See Dkt. No. 122 at 11-12.
On July 15, 2015, the Court received Plaintiff's response to the July 6, 2015 recommendations. See Dkt. No. 123. Plaintiff's response consisted of a copy of Magistrate Judge Dancks' Report-Recommendation and Order with Plaintiff's hand-written note at the bottom of the first page. See id. at 1. Given the ambiguity of Plaintiff's response, the Court directed the Clerk of the Court to send Plaintiff another copy of Magistrate Judge Dancks' Report-Recommendation and Order and reminded Plaintiff that his objections, if any, were due on or before July 23, 2015. See Dkt. No. 124, Text Order. Plaintiff has not filed any additional response to Magistrate Judge Dancks' Report-Recommendation and Order.
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 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 Dancks' July 6, 2015 Report-Recommendation and Order for clear error and manifest injustice; and, finding none, the Court hereby
ORDERS that Magistrate Judge Dancks' July 6, 2015 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 Plaintiff's complaint without prejudice pursuant to Rule 37(d) of the Federal Rules of Civil Procedure as a sanction for Plaintiff's failure to submit to a deposition, see Dkt. No. 113, is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and close this case; 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.