Ashby v. Murphy et al, No. 1:2017cv01099 - Document 42 (W.D.N.Y. 2020)

Court Description: DECISION & ORDER adopting 37 Report and Recommendations. The action against defendant Edward J. Silvestrini is DISMISSED, and the Clerk of Court shall remove Silvestrini as a party in this case. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 10/5/2020. (RFI) (Chambers has mailed a copy of this decision and order to the pro se plaintiff).-CLERK TO FOLLOW UP-

Download PDF
Ashby v. Murphy et al Doc. 42 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK KEVIN ASHBY, Plaintiff, v. 17-CV-1099-LJV-JJM DECISION & ORDER JAMES A. MURPHY, III, et al., Defendants. On October 30, 2017, the plaintiff, Kevin Ashby, commenced this action under 42 U.S.C. § 1983. Docket Item 1. On December 4, 2019, this Court consolidated this action with two other actions that Ashby had pending in this Court. Docket Item 6. On March 9, 2020, this Court referred the consolidated action to United States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket Item 18. On May 11, 2020, the defendants’ counsel notified the Court that defendant Edward J. Silvestrini had died on November 19, 2016. Docket Item 30. On July 10, 2020, Judge McCarthy issued a text order stating that “[p]ursuant to Fed. R. Civ. P. 25(a)(1), a motion for substitution shall be filed by August 10, 2020, failing which [he would] recommend that the action against defendant Silvestrini be dismissed.” Docket Item 33. Neither party filed a notice of substitution, and the time to do so passed. On August 18, 2020, Judge McCarthy issued a Report and Recommendation (“R&R”) finding that the action against Silvestrini should be dismissed. Docket Item 37. Dockets.Justia.com The parties did not object to the R&R, and the time to do so now has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must review de novo those portions of a magistrate judge’s recommendation to which a party objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a district court to review the recommendation of a magistrate judge to which no objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Although not required to do so in light of the above, this Court nevertheless has reviewed Judge McCarthy's R&R and the defendants’ submission to him. Based on that review and the absence of any objections, the Court accepts and adopts Judge McCarthy’s recommendation to dismiss the action against defendant Silvestrini. For the reasons stated above and in the R&R, the action against defendant Silvestrini is DISMISSED, and the Clerk of Court shall remove Silvestrini as a party in this case. The case is referred back to Judge McCarthy for further proceedings consistent with the referral order of March 9, 2020, Docket Item 18. SO ORDERED. Dated: October 5, 2020 Buffalo, New York /s/ Lawrence J. Vilardo LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.