Fabrizio v. Annucci et al, No. 9:2018cv00339 - Document 62 (N.D.N.Y 2019)
Court Description: DECISION AND ORDER that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 60 ) is ACCEPTED AND ADOPTED in its entirety. Defendants' motion for summary judgment (Dkt. No. 50 ) is GRANTED. Plaintiff's Amended Complaint (Dkt. No. 9 ) is DISMISSED without prejudice. The Clerk of Court shall enter Judgment for Defendants and close this action. Signed by Chief Judge Glenn T. Suddaby on 7/25/2019. (Copy served upon plaintiff via regular mail). (sal )
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Fabrizio v. Annucci et al Doc. 62 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________ EDERICK FABRIZIO, a/k/a Ederick Fabricio, Plaintiff, 9:18-CV-0339 (GTS/ML) v. COMM’R ANTHONY J. ANNUCCI, NYS Dept. of Corr. and Comm. Supervision; SUPT. BRANDON SMITH, Supt., Greene C.F.; THOMAS MAURO, IGP Super., Greene C.F., f/k/a T. Mauro; BRIAN SULLIVAN, Corr. Officer, Greene C.F., f/k/a Lt. Sullivan; C.O. OLIVER, Corr. Officer, Greene. C.F.; C.O. LASTER, Corr. Officer, Greene C.F.; JAMES REILLY, Corr. Officer, Greene C.F., f/k/a John Doe #2, f/k/a C.O. Riley; and DANIEL GALIOTO, Corr. Officer, Greene C.F., f/k/a Sgt. Galioto, Defendants. ______________________________________________ APPEARANCES: OF COUNSEL: EDERICK FABRIZIO, 97-A-2265 Plaintiff, Pro Se Otisville Correctional Facility Box 8 Otisville, New York 10963 HON. LETITIA A. JAMES New York State Attorney General Counsel for Defendants The Capitol Albany, New York 12224 NICHOLAS LUKE ZAPP, ESQ. Assistant Attorney General GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in this pro se prisoner civil rights action filed by Ederick Fabrizio (“Plaintiff”) against the above-captioned employees of the New York State Department Dockets.Justia.com of Corrections and Community Supervision (“Defendants”) pursuant to 42 U.S.C. § 1983, is Chief United States Magistrate Judge David E. Peebles’ Report-Recommendation recommending that Defendants’ motion for summary judgment be granted, and that Plaintiff’s Amended Complaint be dismissed without prejudice, on the grounds that Plaintiff failed to exhaust his available administrative remedies before filing this action. (Dkt. No. 60.) None of the parties have filed objections to the Report-Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) After carefully reviewing the relevant papers herein, including Magistrate Judge Peebles’ thorough Report-Recommendation, the Court can find no clear-error in the ReportRecommendation.1 Magistrate Judge Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety, Defendants’ motion for summary judgment is granted, and Plaintiff’s Amended Complaint is dismissed without prejudice. ACCORDINGLY, it is ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 60) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion for summary judgment (Dkt. No. 50) is GRANTED, Plaintiff’s Amended Complaint (Dkt. No. 9) is DISMISSED without prejudice, 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 omitted). 2 and the Clerk of Court shall enter Judgment for Defendants and close this action. Dated: July 25, 2019 Syracuse, New York 3
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