Tutora v. Correctional Medical Care, Inc. et al, No. 9:2010cv00207 - Document 53 (N.D.N.Y 2012)

Court Description: DECISION AND ORDER: ORDERED, that Magistrate Judge Dancks' April 30, 2012 Report-Recommendation (Dkt. No. 52 ) is ADOPTED in its entirety for the reasons stated therein. ORDERED, that Defendants' motions for summary judgment (Dkt. Nos. [4 1] and 42 ) are GRANTED. ORDERED, that the Clerk of Court shall enter judgment in Defendants' favor and close the case. The Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal taken from this Order would not be taken in good faith. Signed by U.S. District Judge Mae A. D'Agostino on 5/23/12. (served on plaintiff by regular mail) (alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ TOLEKSIS BIIN TUTORA, Plaintiff, vs. 9:10-cv-207 (MAD/TWD) CORRECTIONAL MEDICAL CARE, INC.; MICHAEL PARSONS; DR. BUTT; and JOHANNA LOVELL, R.N., Defendants. ____________________________________________ APPEARANCES: OF COUNSEL: TOLEKSIS BIIN TUTORA 425 Robinson Street Binghamton, New York 13904 Plaintiff pro se SMITH, SOVIK, KENDRICK & SUGNET, P.C. 250 South Clinton Street Suite 600 Syracuse, New York 13202-1252 Attorneys for Defendants Correctional Medical Care, Inc. and Michelle Parsons DANIEL R. RYAN, ESQ. MARULLI, LINDENBAUM, EDELMAN & TOMASZEWSKI, LLP 5 Hanover Square, 4th Floor New York, New York 10004 Attorneys for Defendant Lovell RICHARD O. MANNARINO, ESQ. Mae A. D'Agostino, U.S. District Judge: DECISION AND ORDER In a civil rights complaint dated February 21, 2010, Plaintiff alleges that Defendants were deliberately indifferent to his serious medical/dental needs while he was incarcerated at the Broome County Correctional Facility. See Dkt. No. 1 at 2. On September 23, 2011, Defendant Lovell filed a motion for summary judgment. See Dkt. Nos. 41. On September 26, 2011, Defendant Correctional Medical Care, Inc. ("CMC") and Defendant Parsons filed their motion for summary judgment. See Dkt. No. 42. Plaintiff did not respond to either motion. On April 30, 2012, Magistrate Judge Dancks issued a Report-Recommendation in which she recommended that the Court grant the motions for summary judgment, sua sponte dismiss Defendant Biondollilo,1 sua sponte dismiss the claims against Defendant CMC, and, in the alternative, dismiss the action for failure to comply with court orders pursuant to Rule 41 of the Federal Rules of Civil Procedure. See Dkt. No. 52 at 2. Currently before the Court is Magistrate Judge Dancks' Report-Recommendation, to which neither party has objected. When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, when a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, "the 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). A litigant's failure to file objections to a magistrate judge's report and recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See As Magistrate Judge Dancks noted in her Report-Recommendation, the "Dr. Butt" to whom the complaint refers is actually Dr. Biondollilo, not Dr. Butt. 1 2 Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure). In reviewing a pro se case, the court "must view the submissions by a more lenient standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Having reviewed Magistrate Judge Dancks' April 30, 2012 Report-Recommendation and the applicable law, the Court concludes that Magistrate Judge Dancks correctly recommended that the Court should grant the pending motions for summary judgment, sua sponte dismiss the claims against Defendants CMC and Biondollilo, and, in the alternative, dismiss the action for failure to comply with court orders pursuant to Rule 41 of the Federal Rules of Civil Procedure. Magistrate Judge Dancks properly determined that Plaintiff has not provided the Court with any 3 facts justifying his failure to exhaust his administrative remedies and that, notwithstanding this failure, Plaintiff has failed to submit evidence demonstrating that any of the individual Defendants were deliberately indifferent to his serious medical needs. Moreover, Magistrate Judge Dancks also correctly found that, since Plaintiff has failed to establish a violation of his constitutional rights, Defendant CMC cannot be held liable under a municipal liability theory. See Dkt. No. 52 at 16-17. Finally, the Court finds that this case is also properly dismissed, in the alternative, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for Plaintiff's failure to prosecute this case for over seven months and his failure to communicate to the Court or to Defendants that he has changed his address. See id. at 18. Prior to dismissal, Magistrate Judge Dancks provided Plaintiff with adequate notice that his failure to notify the Court of any new address would result in the dismissal of this action. See id.; see also Dkt. No. 6.2 Accordingly, the Court hereby ORDERS that Magistrate Judge Dancks' April 30, 2012 Report-Recommendation is ADOPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendants' motions for summary judgment (Dkt. Nos. 41 and 42) are GRANTED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further CERTIFIES that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal taken from this Order would not be taken in good faith; and the Court further The Court notes that all mail sent to Plaintiff over the last seven months at the address he provided to the Court has been returned without a forwarding address. 2 4 ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in accordance with the Local Rules. IT IS SO ORDERED. Dated: May 23, 2012 Albany, New York 5

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