The opinion
SiMTES DISTRIC
UNITED STATES DISTRICT COURT (msm
WESTERN DISTRICT OF NEW YORK
JAN 2 5 2024
SSS TTS
ANTHONY ROMANO
Plaintiff,
v. 18-CV-302 (JLS) (MJR)
C.0. BROWN and
SGT. BOWER,
Defendants.
DECISION AND ORDER
Plaintiff Anthony Romano, a prisoner, commenced this action on March 1,
2018, alleging claims under 42 U.S.C. § 1988. Dkt. 1. He claims that, on April 19,
2017, he was subjected to excessive use of force in violation of his Eighth Amendment
rights. Jd. He filed an Amended Complaint on October 29, 2020, which is now the
operative complaint. Dkt. 21.! The case has been referred to United States
Magistrate Judge Michael J. Roemer for all proceedings under 28 U.S.C. §§
636(b)(1)(A), (B), and (C). Dkt. 24.
On April 8, 2028, Defendant Brown moved to dismiss for lack of prosecution.
Dkt. 65. Plaintiff thereafter filed various submissions, Dkt. 66, 68, 70, and Brown
replied. Dkt. 67. On November 28, 2023, Judge Roemer issued a Report and
Recommendation (“R&R”) recommending that Brown’s “motion be granted and that
the amended complaint be dismissed, without prejudice, for failure to prosecute.” Dkt.
1 Pursuant to this Court’s March 25, 2021 Decision and Order, only C.O. Brown and
Set. Bower remain as defendants. See Dkt. 23.
71. He further recommended that “dismissal for failure to prosecute should apply
equally to plaintiffs claims against Bower” such that “the entire amended complaint”
is “dismissed without prejudice.” Jd. at 14n.8. On December 26, 20238, Plaintiff
objected to the R&R. Dkt. 72. Brown opposed the objections, Dkt. 74, and Plaintiff
replied. Dkt. 75.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 686(b)(1); Fed. R. Civ. P. 72(b)(3). A district court
must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which a party objects. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.
P. 72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72
requires a district court to review the recommendation of a magistrate judge to which
no objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985),
This Court carefully reviewed the R&R, the objections briefing, and the relevant
record. Based on its de novo review, the Court accepts and adopts Judge Romer’s
recommendation. For the reasons stated above and in the R&R, this Court GRANTS
the [65] motion. The Amended Complaint is dismissed, without prejudice, for failure
to prosecute. The Clerk of Court is directed to close the case.
SO ORDERED.
Dated: January 25, 2024
Buffalo, New York 4
UNI D STATES DISTRICT JUDGE _