Cite as: Francis v. NYC, 12 Civ. 0946 (PAE) (JCF), NYLJ 1202578368456, at *1 (SDNY, Decided October 11, 2012)

District Judge Paul A. Engelmayer

Click here to see Judicial Profile

Decided: October 11, 2012





Before the Court is the July 17, 2012, Report and Recommendation of Magistrate Judge James C. Francis IV that the Court dismiss plaintiff's Complaint for failure to exhaust administrative remedies (the "Report"). For the reasons that follow, the Court adopts the Report in full, and plaintiffs Complaint is dismissed.

I. Background

Francis, a plaintiff pro se, filed his Complaint on February 2, 2012, pursuant to 42 U.S.C. §1983. Dkt. 1. Francis alleges that the City of New York ("the City") failed to provide him with an adequately sized bed and that he suffered injuries as a result. See Compl. at 5.

On May 21, 2012, the City moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 12-14. Francis did not oppose the motion to dismiss. On July 17, 2012, Judge Francis issued the Report, recommending that the City's request to dismiss the case be granted because of Francis's failure to exhaust all available administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. §1997e(a).




Dkt. 21. The deadline for Francis to file objections to the Report was July 31, 2012. He has filed no objections.

II. Discussion

In reviewing a Report and Recommendation, a district 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 )(C). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Carlson v. Dep't of Justice, No. 10 Civ. 5149 (PAE) (KNF), 2012 WL 928124, at *1 (S.D.N.Y. Mar. 19, 2012) (citation omitted); see also Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).

Francis has proffered no objections to the Report, so a review for clear error is appropriate. Careful review of the Report reveals no facial error in its conclusions; the Report is therefore adopted in its entirety. Because the Report explicitly states that "[f1ailure to file timely objections will preclude appellate review," Report at 8, Francis's failure to object operates as a waiver of appellate review. See Caidor v. Onondaga County, 517 F.3d 601,604 (2d Cir. 2008) (citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)).


For the reasons stated herein, the Court adopts the Report (Dkt. 21) in full. Plaintiffs Complaint is hereby DISMISSED. The Clerk of Court is directed to terminate the case.