Rosario v. Doe ( 2023 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK TREMEL ROSARIO, Plaintiff, 1:22-cv-01112 (BKS/DJS) v. JON DOE, et al., Defendants. Appearances: Plaintiff pro se: Tremel Rosario 20-A-0975 Sing Sing Correctional Facility 354 Hunter Street Ossining, New York 10562 Hon. Brenda K. Sannes, Chief United States District Judge: MEMORANDUM-DECISION AND ORDER Plaintiff pro se Tremel Rosario commenced this proceeding under 42 U.S.C. § 1983, and sought leave to proceed in forma pauperis (“IFP”), which was granted. (Dkt. Nos. 9, 11). This matter was referred to United States Magistrate Judge Daniel J. Stewart who, on January 31, 2023, issued a Report-Recommendation recommending that Plaintiff’s complaint be dismissed on the ground that it is barred Heck v. Humphrey, 512 U.S. 477 (1994). (Dkt. No. 12). Magistrate Judge Stewart advised Plaintiff that under 28 U.S.C. § 636(b)(1), he had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen days would preclude appellate review. (Id. at 7–8). Plaintiff did not file an objection to the Report-Recommendation. As no objection to the Report-Recommendation has been filed, and the time for filing objections has expired, the Court reviews the Report-Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear error and found none, the Court adopts the recommendation that the complaint be dismissed. For these reasons, it is hereby ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 12) is ADOPTED; and it is further ORDERED that Plaintiff's complaint (Dkt. No. 1) is DISMISSED WITHOUT PREJUDICE; | and it is further ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the Local Rules. IT IS SO ORDERED. Dated: March 2, 2023 Syracuse, New York Pree | ( awe ha. Brenda K. Sannes Chief U.S. District Judge “Disposition of [a] case on Heck grounds. . . warrants only dismissal without prejudice, because the suit may be reimstituted should plaintiff’s conviction be “expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Amatker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (quoting Heck, 512 U.S. at 487).