Banks v. Rock, et al, No. 9:2013cv01500 - Document 82 (N.D.N.Y 2017)

Court Description: DECISION AND ORDER: The 72 Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). ORDERED, that Defendants' motion to dismiss plaintiff's action as a sanction for failing to participate in his deposition, pursuan t to Federal Rule of Civil Procedure 37 (ECF No. 71 ) is GRANTED and the complaint is DISMISSED WITH PREJUDICE. The Clerk of the Court shall enter judgment and close the case. Signed by Judge David N. Hurd on 3/29/17.(served on plaintiff by regular mail) (alh, )

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Banks v. Rock, et al Doc. 82 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------EDWIN BANKS, Plaintiff, -v- 9:13-CV-1500 (DNH/ATB) D. ROCK, Superintendent, Upstate Correctional Facility; E. MARSHALL, Correction Officer, Upstate Correctional Facility; M. SEVEY, Correction Officer, Upstate Correctional Facility; B. PAGE, Correction Officer; Upstate Correctional Facility, HIDE, Correction Officer; Upstate Correctional Facility; Defendants. -------------------------------APPEARANCES: OF COUNSEL: EDWIN BANKS Plaintiff, Pro Se 03-B-1574 Marcy Correctional Facility P.O. Box 3600 Marcy, New York 13403 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorneys for Defendants The Capitol Albany, New York 12224 RACHEL M. KISH, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff Edwin Banks brought this civil rights action pursuant to 42 U.S.C. § 1983. See Complaint, ECF No. 1. On March 8, 2016, the Honorable Andrew T. Baxter, United States Magistrate Judge, advised by Report-Recommendation that the defendants’ motion to dismiss plaintiff’s action as a sanction for plaintiff failing to participate in his deposition pursuant to Federal Rule of Civil Procedure 37. See ECF No. 72. In a March 30, 2016 Order, this Court Dockets.Justia.com accepted the Report-Recommendation in whole and dismissed plaintiff’s action with prejudice. See ECF No. 73. On August 5, 2016, plaintiff requested that the Court vacate its prior Order and permit him an opportunity to file objections. See ECF No. 79. On August 10, 2016, this Court granted plaintiff’s request and ordered that any objections be submitted by August 24, 2016. See ECF No. 80. Although the Order was sent to plaintiff’s address at Marcy Correctional Facility, plaintiff failed to timely file such objections. Instead, on December 14, 2016, plaintiff submitted a letter seeking the status of his case. After permitting plaintiff an additional period of time to submit objections and based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). In plaintiff’s December 14, 2016 letter, he indicates a desire to appeal this Court’s ruling. The plaintiff is advised that pursuant to the Federal Rule of Appellate Procedure, plaintiff must file a notice of appeal in compliance with Rule 3(c) to challenge this Decision and Order. Therefore, it is ORDERED that: (1) Defendants’ motion to dismiss plaintiff’s action as a sanction for failing to participate in his deposition, pursuant to Federal Rule of Civil Procedure 37 (ECF No. 71) is GRANTED and the complaint is DISMISSED WITH PREJUDICE; and (2) The Clerk serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules. The Clerk of the Court shall enter judgment and close the case IT IS SO ORDERED. Dated: March 29, 2017 Utica, New York -2-

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