Berry v. Schenectady County et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
JESSE BERRY,
Plaintiff,
-v- 	9:25-CV-57 (DNH/ML)
SERGEANT NERNEY et al.,
Defendants.
_____________________________________
Hon. David N. Hurd, U.S. District Judge:
ORDER ON REPORT & RECOMMENDATION
On January 13, 2025, pro se plaintiff Jesse Berry (“plaintiff”) filed this 42 U.S.C. § 1983
action alleging that defendants violated his civil rights while he was confined at the Schenectady
County Jail. Dkt. No. 1. Along with his complaint, plaintiff moved for leave to proceed in forma
pauperis (“IFP Application”). Dkt. Nos. 2, 3, 5.
On February 19, 2025, this Court granted plaintiff’s IFP Application and, after conducting
an initial review of the pleading, ordered defendants Nerney, Pannitto, Jeremy Kent, and John Kent
to respond to plaintiff’s § 1983 excessive force and failure-to-intervene claims. Dkt. No. 7.
Those defendants answered the complaint. 	Dkt. No. 18. 	But plaintiff soon became un-
reachable at his given mailing address. Dkt. No. 24. U.S. Magistrate Judge Miroslav Lovric issued
two orders warning plaintiff that his failure to update his mailing address might result in sanctions,
up to and including dismissal of this action. Dkt. Nos. 25, 27. Those mailings were returned to
the Court as undeliverable. Dkt. Nos. 26, 30.
Thereafter, defendants sought, Dkt. No. 31, and then received, Dkt. No. 32, permission to
file a motion to dismiss based on plaintiff’s failure to prosecute this action and failure to comply
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with court orders, Dkt. No. 33. Judge Lovric made another attempt to warn plaintiff of his obliga-
tions, including his obligation to keep his mailing address current, and to caution him that his case
might be dismissed. Dkt. No. 35. But that order from Judge Lovric, just like other mailings to
plaintiff’s last known address on file, was returned as undeliverable. Dkt. Nos. 34, 36, 37.
On May 15, 2026, Judge Lovric advised by Report & Recommendation (“R&R”) that de-
fendants’ motion to dismiss be granted. Dkt. No. 38. Neither party has lodged objections, and the
time period in which to do so has expired. See id. As before, the copy of the R&R that the Court
has mailed to plaintiff at his last known address on file has been returned as undeliverable. Dkt.
No. 39.
Upon review for clear error, the R&R is accepted and will be adopted. See FED. R. C IV. P.
72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 38) is ACCEPTED;
2. Defendants’ motion to dismiss (Dkt. No. 33) is GRANTED; and
3. Plaintiff’s complaint (Dkt. No. 1) is DISMISSED.
The Clerk of the Court is directed to terminate the pending motions, enter a judgment ac-
cordingly, and close the file.
IT IS SO ORDERED.
Dated: June 9, 2026
Utica, New York.
Case 9:25-cv-00057-DNH-ML Document 40 Filed 06/09/26 Page 2 of 2