Perez v. Fischer et al, No. 9:2010cv00518 - Document 51 (N.D.N.Y 2012)

Court Description: DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 48 ) is APPROVED and ADOPTED in its ENTIRETY. ORDERED, that Defendants' Motion for summary judgment (Dkt. No. 40 ) is GRANTED as to: (1) Defendants Fischer, Artus, LeClai re, and Racette; (2) Plaintiff's claims of conspiracy against Defendants Keysor and Miller; and (3) Plaintiff's First Amendment access to courts and Sixth Amendment claims; and DENIED as to all other Defendants and claims. ORDERED, that D efendants Fischer, Artus, LeClaire, and Racette are terminated from this action. ORDERED, that all "John/Jane Doe" Defendants are DISMISSED without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Signed by Senior Judge Lawrence E. Kahn on 3/30/12. (served on plaintiff by regular mail) (alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK CARLOS PEREZ, Plaintiff, -against- 9:10-CV-0518 (LEK/DRH) BRIAN FISCHER, Commissioner; LUCIEN J. LeCLAIRE, JR., Deputy Commissioner; JOHN DOE, Inspector General of NYS DOCS; DALE ARTUS, Superintendent, Clinton Correctional Facility; S. RACETTE, Deputy Superintendent, Clinton Correctional Facility; D. KEYSOR, Deputy Superintendent of Administration, Clinton Correctional Facility; D. HOLDRIDGE, Captain, Clinton Correctional Facility; MILLER, Lieutenant, Clinton Correctional Facility; R. FURNIA, Sergeant, Clinton Correctional Facility; K. RABIDEAU, Clinton Correctional Facility; D. DUQETTE, Clinton Correctional Facility; S. TOUSIGNANT, Clinton Correctional Facility; ST. LOUIS, Clinton Correctional Facility; MUSSEN, Clinton Correctional Facility; and JOHN/JANE DOES ##1-5, Clinton Correctional Facility, Defendants. DECISION and ORDER This matter comes before the Court following a Report-Recommendation filed on March 1, 2012, by the Honorable David R. Homer, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Dkt. No. 48 ( Report-Rec. ). After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned, including the Objections by Plaintiff Carlos Perez ( Plaintiff ), which were filed on March 15, 2012. Dkt. No. 49 ( Objections ). The Court is to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b). Where, however, an objecting party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error. Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007)) (citations and quotations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1). Plaintiff raises objections to the portions of the Report-Recommendation pertaining to: (1) Plaintiff s failure to exhaust his administrative remedies; (2) the personal involvement of Defendant Racette; (3) Plaintiff s claim for denial of access to the courts; (4) Plaintiff s conspiracy claim; (5) Plaintiff s due process claim; and (6) dismissal of John/Jane Doe defendants. Obj. at 3-10. Accordingly, the Court has reviewed these portions of the Report-Recommendation de novo, and the remainder of the Report-Recommendation for clear error. After a careful review of the record and taking all of Plaintiff s Objections into consideration the Court concludes that the the ReportRecommendation should be approved and adopted in its entirety for the reasons stated therein. Accordingly, it is hereby: ORDERED, that the Report-Recommendation (Dkt. No. 48) is APPROVED and ADOPTED in its ENTIRETY; and it is further ORDERED, that Defendants Motion for summary judgment (Dkt. No. 40) is GRANTED 2 as to: (1) Defendants Fischer, Artus, LeClaire, and Racette; (2) Plaintiff s claims of conspiracy against Defendants Keysor and Miller; and (3) Plaintiff s First Amendment access to courts and Sixth Amendment claims; and DENIED as to all other Defendants and claims; and it is further ORDERED, that Defendants Fischer, Artus, LeClaire, and Racette are terminated from this action; and it is further ORDERED, that all John/Jane Doe Defendants are DISMISSED without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure; and it is further ORDERED, that the Clerk serve a copy of this Order on all parties. IT IS SO ORDERED. DATED: March 30, 2012 Albany, New York 3

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