Fabricio v. Annucci

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ EDERICK FABRIZIO, a/k/a Ederick Fabricio, Plaintiff, 9:20-CV-0011 v. (GTS/ML) SUPT. BRANDON SMITH; IGP T. MAURO; C.O. RILEY; C.O. OLIVER; and C.O. LASTER, Defendants. _____________________________________________ APPEARANCES: EDERICK FABRIZIO Plaintiff, Pro Se Calle 13-A DDY Villa del Rey IV Caguas, Puerto Rico 00727 HON. LETITIA A. JAMES DAVID C. WHITE, ESQ.

Attorney General for the State of New York Assistant Attorney General Counsel for Defendants The Capitol Albany, New York 12224 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 five above-captioned employees of the New York State Department of Corrections and Community Supervision (“Defendants”), is United States Magistrate Judge Miroslav Lovric’s Report-Recommendation recommending that Defendants’ motion to dismiss for failure to state a claim be granted with respect to Plaintiff's retaliation claim against Defendant Laster based upon the March 2018 search and Plaintiff's retaliation claims against Defendants Mauro and Smith, but that Defendants’ motion be denied in all other respects. (Dkt. Nos. 33, 39, 42.) The parties have not 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 Lovric’s thorough Report-Recommendation, the Court can find no clear-error in the Report- Recommendation.1 Magistrate Judge Lovric 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 for the reasons set forth therein, and Defendants’ first motion to dismiss is granted in part and denied in part as recommended in the Report- Recommendation.

ACCORDINGLY, it is ORDERED that Magistrate Judge Lovric’s Report-Recommendation (Dkt. No. 42) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion to dismiss for failure to state a claim (Dkt. No. 33) is GRANTED in part with respect to the following claims: (1) Plaintiff’s retaliation claim against Defendant Laster based upon the March 2018 search; and 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) Plaintiff's retaliation claims against Defendants Mauro and Smith; and it is further ORDERED that Defendants’ motion to dismiss (Dkt. No. 33) is DENIED in part in all other respects.

Dated: June 1, 2021 Syracuse, New York Hon. Glenn T. Suddaby Chief U.S. District Judg