GREENFIELD v. CORZINE et al
Filing
41
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 37 Report and Recommendations, granting in part Defts' motion to dismiss, excepting Pltf's Fourth Cause of Action, and that Pltf. is hereby instructed to re-plead his Fourth Cause of Action as a consolidated count in Civil Action No. 01-789, now pending before this Court ***CIVIL CASE TERMINATED. Signed by Judge Dennis M. Cavanaugh on 4/4/12. (dc, )
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NOT FOR PUBLICATION
CLOSED
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GILBERT THOMAS GREENFIELD, JR.,
Hon. Dennis M. Cavanaugh
Plaintiffs,
ORDER
v.
Civil Action No. 09-cv-4983 (DMC JAD)
-
JON CORZNE, et al.,
Defendants.
DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon a Report and Recommendation (“R & R”) (ECF
No, 37) filed by Magistrate Judge Joseph A. Dickson (hereinafter, “Judge Dickson”) on June 9,
2011, recommending that this Court grant in part and deny in part Defendant’s motion to dismiss
filed on October 23, 2010.
The parties were given notice that pursuant to Local Civil Rule 72.1, they had fourteen days
from receipt of the R & Rto file and serve any objections. Plaintiff filed opposition on July 15, 2011
(ECF No. 40). This Court is mindful of precedent in this District permitting relaxation of timeliness
rules for pro se litigants, and has considered the objections raised by Plaintiff despite Plaintiff’s filing
out of time. Seeg, Martin v. Keitel, 2007 U.S. Dist. LEXIS 29000, *1.2 (D.N.J. Apr. 18, 2007)
(JLL).
The standard of review guiding this Court contemplates “a
novo determination of those
portions [of the R & R] to which objection is made.” L. Civ. R. 72. 1(c)(2). This Court may “accept,
1
reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate
Judge.” jcj. In conducting its review, the Court “may consider the record developed before the
Magistrate Judge, making [its] own determination on the basis of that record.” S
N.J. Brain
& Spine Cntr. v. Conn. Gen. Life Ins., No. 10-cv-4260, 2011 WL 4737063, at *2 (Oct. 6, 2011)
(citing State Farm Indem. v. Fornaro, 227 F.Supp.2d 229,231 (D.N.J.2002)). For the reasons stated
herein, this Court adopts Judge Dickson’s R & R as the opinion of the Court.
WHEREAS Plaintiff’s claims are contained in the complaint (ECF No. 1) filed on
September 28, 2009 and supplemental complaint (ECF No. 22) filed on November 8, 2011;
WHEREAS Judge Dickson finds that Plaintiff’s “fourth cause of action for failure to provide
adequate treatment” (Pl.’s Compi.
¶ 5.32-5.68 and ¶ 6.4, Sept. 28, 2009, ECF No. 1) (hereinafter,
“Fourth Cause of Action”) presents a plausible claim. Judge Dickson recommends that Plaintiff re
plead that claim with more specificity in accordance with Ashcrofi v. Iqbal, 129 5. Ct. 1937, 1948-9
(2009), in the Alves v. Ferguson case (Docket No. 01-cv-789) now pending before this Court;
WHEREAS this Court, upon review of Judge Dickson’s recommendation and the record
before it, finds that this Fourth Cause of Action, properly plead, involves questions of law and fact
common to the Alves v. Ferguson case;
WHEREAS Plaintiff’s claims are barred under the 1
th
1
amendment and by the applicable
statute of limitations and Plaintiff fails to state a plausible theory of liability beyond a respondeat
superior relationship as to several Defendants and fails to supply evidence showing that his protected
rights or liberty interests were violated;
WHEREAS this Court finds that Plaintiff’s objections as to all counts besides the Fourth
Cause of Action, do not cure the defects Defendants point out in their motion to dismiss;
2
ITlSonthis
dayofApril, 2012,
ORDERED that Defendants’ motion to dismiss is granted in part, excepting Plaintiffs
Fourth Cause of Action;
IT IS FURTHER ORDERED that Judge Dickson’s R & R is hereby adopted as the
opinion of this Court and Plaintiff is hereby instructed to re-plead his Fourth Cause of Action as a
consolidated count in the case of Alves v. Ferguson (Docket No. 01 -cv-789), now pending before
this Court.
M. Cavanaugh,
Original:
cc:
Clerk
All Counsel of Record
Hon. Joseph A. Dickson, U.S.M.J.
File
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