Mercer v. Harp et al, No. 1:2014cv01029 - Document 9 (N.D.N.Y 2015)

Court Description: DECISION AND ORDER accepting and adopting # 8 Magistrate Judge Treece's Report and Recommendation in its entirety; and Plaintiff's complaint is dismissed. The clerk is directed to forward this matter to Chief Judge Sharpe to determine whe ther to issue an order prohibiting Plaintiff from filing any further actions in this District pro se without first seeking leave of the Chief Judge. Signed by Judge Glenn T. Suddaby on 2/25/15. (lmw) (Copy served upon pro se plaintiff via regular mail & certified mail)

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Mercer v. Harp et al Doc. 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ ARTHUR L. MERCER, Plaintiff, 1:14-CV-1029 (GTS/RFT) v. KEVIN HARP, Assist. Dist. Attorney, Ulster Cnty.; and DONALD WILLIAMS, Cnty. Court Judge, Ulster Cnty., Defendants. __________________________________________ APPEARANCES: ARTHUR L. MERCER, #1646 Plaintiff, Pro Se Ulster County Jail 380 Boulevard Kingston, New York 12401 GLENN T. SUDDABY, United States District Judge DECISION and ORDER Currently before the Court, in the above-captioned civil rights action filed pro se by Arthur L. Mercer (“Plaintiff”) against the two above-captioned individuals (“Defendants”), is United States Magistrate Randolph F. Treece’s Report-Recommendation and Order of January 23, 2015, which does three things: (1) denies Plaintiff’s motion to proceed in forma pauperis because of the “three strikes” provision of 28 U.S.C. § 1915(g); (2) recommends that Plaintiff’s Complaint be sua sponte dismissed pursuant to 28 U.S.C. § 1915A because it fails to state a claim upon which relief can be granted and it seeks relief from defendants who are immune from suit; and (3) recommends that this matter be forwarded to Chief United States District Judge Gary L. Sharpe for the issuance of an Order prohibiting Plaintiff from filing any further actions Dockets.Justia.com in this District pro se without first seeking leave of the Chief Judge because of Plaintiff’s vexatious litigation history. (Dkt. No. 8.) Plaintiff has not filed an objection to the ReportRecommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) After carefully considering the matter, the Court can find no clear error1 in Magistrate Judge Treece’s Report-Recommendation: Magistrate Judge Treece employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 8.) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. ACCORDINGLY, it is ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 8) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED; and it is further ORDERED that this matter be forwarded by the Clerk of the Court to Chief Judge Sharpe for a determination of whether to issue an Order prohibiting Plaintiff from filing any further actions in this District pro se without first seeking leave of the Chief Judge. Dated: February 25, 2015 Syracuse, New York 1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1. (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks and citations omitted). 2

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