Pacheco v. Zurlo et al, No. 9:2009cv01330 - Document 38 (N.D.N.Y 2011)

Court Description: DECISION AND ORDER: The 36 Report and Recommendation is accepted and adopted.ORDERED that 24 Motion for Summary Judgment is granted; and plaintiff's complaint is dismissed in its entirety. Signed by Senior Judge Thomas J. McAvoy on 3/23/11. {order served via regular mail on all non-ecf parties}(nas)

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Pacheco v. Zurlo et al Doc. 38 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------ANDRE PACHECO, Plaintiff, vs. 09-CV-1330 ZURLO, et al., Defendants. -------------------------------Thomas J. McAvoy, Sr. U.S. District Judge DECISION & ORDER This pro se civil rights action pursuant to 42 U.S.C. § 1983 was referred to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). The Report-Recommendation dated February 8, 2011 recommended that the Defendants motion for summary judgment be granted and that Plaintiff s complaint be dismissed in its entirety. Plaintiff filed timely1 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 1 Plaintiff s Objections to the Report-Recom m endation were supposedly handed to prison authorities for processing on February 17, 2011 - the day the affidavit of service by m ail was notarized. Dkt. 37 at 8. Accordingly, Plaintiff s Objections are tim ely filed under the prisoner m ailbox rule. See Houston v. Lack, 487 U.S. 266, 270-71 (1988); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). 1 Dockets.Justia.com proposed findings or recommendations to which objection is made. See 28 U.S.C. § 636(b)(1). After such a 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, this Court has determined to accept and adopt the recommendation of Magistrate Judge Baxter for the reasons stated in the Report-Recommendation. It is therefore ORDERED that: 1. Defendants motion for summary judgment (Dkt. No. 24) is GRANTED; and 2. Plaintiff s complaint is DISMISSED IN ITS ENTIRETY. IT IS SO ORDERED. Dated:March 23, 2011 2

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