United States District Court, S.D. New York
ORDER ADOPTING REPORT & RECOMMENDATION
VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE.
Charles Buckner, proceeding pro se, alleges that he
was held on a “modified” lock-down at the Otis
Bantum Correctional Center for at least 11 days in November
2016. Compl. (Dkt. 2) at 3, 8. Buckner alleges that the
lock-down violated his First and Eighth Amendment rights.
Compl. at 3. Seeking redress, he has sued the above-captioned
officials of the New York City Department of Correction
(“DOC”) and demanded $300, 000 in money damages.
Compl. at 5. The Defendants moved to dismiss on the grounds
that Buckner failed to exhaust his administrative remedies,
has not alleged the personal involvement of the Defendants,
cannot state a claim for punitive damages, and cannot recover
money damages because he has not alleged a physical injury.
See Mem. (Dkt. 12).
Court referred this case to Magistrate Judge Francis for
general pretrial and preparation of a report and
recommendation on any dispositive motions. Dkt. 6. The
Defendants filed their motion to dismiss on June 9, 2017.
Dkts. 11, 12. Buckner did not oppose or otherwise respond to
the motion. Magistrate Judge Francis issued a report and
recommendation (the “R&R”) on August 10,
2017. Dkt. 15. Notwithstanding Buckner's failure to
oppose the motion to dismiss, it is plain from the R&R
that Judge Francis carefully scrutinized the Defendants'
arguments and independently evaluated their merits. The
R&R recommends that the Court grant the motion to dismiss
without prejudice because it is plain from the face of the
complaint that Buckner did not exhaust his administrative
remedies - although there may be facts that would excuse him
from doing so. R&R at 6-7. Additionally, Judge Francis
concluded that Buckner did not allege the personal
involvement of the Defendants or allege facts that might give
rise to a claim for compensatory damages for his Eighth
Amendment claim. R&R at 8-12.
has not filed any objections to the R&R and his time to
do so has expired.
reviewing a report and recommendation, a district 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)(C). When no
objections are made to a magistrate judge's report, a
district court may adopt the report so long as “there
is no clear error on the face of the record.”
Phillips v. Reed Grp., Ltd., 955 F.Supp.2d 201, 211
(S.D.N.Y. 2013) (citing Nelson v. Smith, 618 F.Supp.
1186, 1189 (S.D.N.Y. 1985)). Failure to file timely
objections to the magistrate judge's report constitutes a
waiver of those objections in the district court and on later
appeal to the United States Court of Appeals. See Small
v. Sec'y of Health & Human Servs., 892 F.2d 15,
16 (2d Cir. 1989) (per curiam); see also Thomas
v. Arn, 474 U.S. 140, 149-50 (1985) (holding that
Section 636 does not require review of a magistrate's
findings if no party objects).
no objections to the R&R were filed, the Court reviews
for “clear error.” Phillips, 955
F.Supp.2d at 211. Upon careful review, the Court finds no
clear error in Magistrate Judge Francis's well-reasoned
decision. Accordingly, the Court adopts the R&R in full.
motion to dismiss is GRANTED. As noted above, Plaintiff did
not file an opposition to the motion to dismiss or objections
to the R&R. Nonetheless, because Plaintiff is proceeding
pro se, the Court will permit Plaintiff, if he
chooses, to file an amended complaint on or before
February 9, 2018. Plaintiff is reminded,
however, that pro se litigants, like all litigants,
are required to submit only pleadings that are supported by
fact and law. Breach of this duty may result in sanctions,
including an award of attorneys' fees to Defendants.
Fed.R.Civ.P. 11(b), (c). Failure to file an amended complaint
will result in dismissal of this action with prejudice.
Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and
therefore in forma pauperis status is denied for the
purposes of an appeal. Cf. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962) (holding that
appellant demonstrates good faith when seeking review of a
Clerk of Court is respectfully requested to close the open
motion at docket entry 11. The Clerk of Court is further
requested to mail a copy of this Order and the R&R to
Plaintiff and note mailing on the docket.