Martinez v. New York State Department of Correctional Services, No. 9:2009cv00665 - Document 42 (N.D.N.Y 2011)
Court Description: DECISION and ORDER: The 39 Report and Recommendation is accepted and adopted. ORDERED that 32 Motion to Dismiss is granted and plaintiff's second amended complaint is dismissed. Signed by Senior Judge Thomas J. McAvoy on 9/28/11.{order served via regular mail on all non-ecf parties} (nas)
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------ANDRES MARTINEZ, Plaintiff, v. 09-CV-665 WILLIAM LAPE, Superintendent; JOAN SMITH, Deputy Superintendent of Health; MR. KILLAR, I.G.R.C. Supervisor; DR. MILLER, Facility Health Service Director; DR. Paolano, R.M.U. Clinic; MR. O NEAL, Correction Officer; K. TALAVERA, Counselor; MS. MARILYN, Dietician; MR. SEGATTO, Sergeant; M. MOTTO, Nurse in R.M.U.;and V. BALDWIN, Nurse Admisnistrator, Defendants. -------------------------------THOMAS J. McAVOY Senior United States District Judge DECISION and ORDER This matter brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Randolph F. Treece, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. §636(b) and Local Rules 72.3(c). The Report-Recommendation dated March 28, 2011 recommended that the Defendants Motion to Dismiss (Dkt. No. 32) be granted and Plaintiff s Second Amended Complaint (Dkt. No. 8) be dismissed. Plaintiff filed timely objections to the Report-Recommendation, essentially raising the same arguments presented to the Magistrate Judge. When objections to a Magistrate Judge s Report-Recommendation are lodged, the Court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. See 28 U.S.C. § 636(b)(1). After such review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id. Having reviewed the record de novo and having considered the issues raised in the Plaintiff s objections, the Court has determined to accept and adopt the recommendation of Magistrate Judge Treece for the reasons stated in the Report-Recommendation. Accordingly, Defendant s motion to dismiss is GRANTED and Plaintiff s Second Amended Complaint is DISMISSED. IT IS SO ORDERED. Dated: September 28, 2011 - 2 -
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