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holding that the plaintiff's administrative remedies were available to him when, after his grievance was denied as untimely, the plaintiff could have filed a request for an extension of time but failed to do so
Summary of this case from Smith v. DodgeOpinion
9:12-CV-1318
09-22-2014
GARRY WARREN, Plaintiff, v. SGT. BEALEY, Sergeant, Greene Correctional Facility, DAMIANO, Correction Officer, Greene Correctional Facility, LAMPOUTUS, Correction Officers, Greene Correctional Facility, HAYES, Correction Officer, Greene Correctional Facility, JOHN DOE, Correction Officer, Mid-State Correctional Facility, JOHN DOE(S), Correction Officers, Greene Correctional Facility, Defendants.
DECISION & ORDER
I. INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Randolph F. Treece, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). No objections to the Report-Recommendation and Order dated July 28, 2014 have been filed, and the time to do so has expired.
The Docket indicates that the underlying motion for summary judgment, upon which Magistrate Judge Treece issued his Report-Recommendation and Order, was filed on January 17, 2014. Despite being granted three extension of time in which to file opposition, Plaintiff failed to do so. As indicated, Magistrate Judge Treece issued his Report-Recommendation and Order on July 28, 2014. On August 8, 2014, Plaintiff filed a request to withdrawal this action without prejudice until he can acquire legal representation. Defendants opposed the request. On August 11, 2014, the Court denied Plaintiff's request and granted him an extension until September 15, 2014 to either file objections to Magistrate Judge Treece's Report-recommendation or to have an attorney electronically file a notice of appearance and to file any objections to the report-recommendation on Plaintiff's behalf. On September 2, 2014, the Report-Recommendation and Order, mailed to Plaintiff's last reported address, was returned as "undeliverable."
Every litigant is required to keep the Court advised of his or her address so that documents and decisions may be served upon them by mail. See Local Rules of the United States District Court for the Northern District of New York, 10.1(b), 41. (2) & (b). Failure to do so can greatly delay proceedings and, therefore, can be construed as an abandonment of the action. Under the circumstances, including Plaintiff's failure to respond to the motion for summary judgment despite three extension and his request to withdraw his action after Defendants filed their motion for summary judgment, the Court deems that Plaintiff has intentionally failed to file any objections and has abandoned this action.
Furthermore, after examining the record, this Court has determined that the Report-Recommendation and Order is not subject to attack for plain error or manifest injustice.
II. CONCLUSION
Accordingly, the Court ADOPTS the Report-Recommendation and Order (Dkt. No. 33) for the reasons stated therein. Therefore, it is hereby
ORDERED that Defendants' Motion for Summary Judgment (Dkt. No. 24) is GRANTED, and all claims in this action are DISMISSED. The Clerk of the Court may enter judgment for the Defendants and mark this case as closed.
IT IS SO ORDERED.
Dated: September 22, 2014
/s/_________
Thomas J. McAvoy
Senior, U.S. District Judge