Encarnacion v. Silverberg et al, No. 9:2013cv01000 - Document 60 (N.D.N.Y 2015)
Court Description: DECISION AND ORDER: ORDERED, that the Court accepts and adopts Magistrate JudgeTreece's Report-Recommendation and Order (Dkt. # 57 ) in its entirety. Accordingly, Defendants' motion for summary judgment (Dkt. # 53 ) is GRANTED, and all claims in this action are DISMISSED. The Clerk may enter judgment in favor of Defendants and close the file in this matter. Signed by Senior Judge Thomas J. McAvoy on 9/23/15. (served on plaintiff by regular mail) (alh, )
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Encarnacion v. Silverberg et al Doc. 60 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK BERNABE ENCARNACION, Plaintiff, -v- Civ. No. 9:13-CV-1000 (TJM/RFT) M.D. DOCTOR SILVERBERG, Director of GMCF - DOCS; DR. DAVID KARANDY, FSHD CMCF, DOCS; DR. CARL KOENIGSMANN; Chief HD, DOCS; JANET M. COLLIN, Admin. Nurse CMCF, DOCS, SUE ALDEN, R. Nurse CMCF - DOCS; CHAMBERLAIN, R. Nurse CMCF - DOCS; STEVEN RACETTE, Warden CMCF - DOCS, R. GLASEEN,1 Inspector General; STEVEN FRIES, Doctor - UPSCF - DOCS; RENEE HOLMES, R. Nurse UPSCF - DOCS; DAVID ROCK, Warden, Upstate Correctional Facility; BRIAN FISCHER, Commissioner New York State Department of Corrections and Community Supervision, Defendants. THOMAS J. MCAVOY, Senior United States District Judge DECISION & ORDER I. INTRODUCTION This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court to the Hon. Randolph F. Treece, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In his Report-Recommendation and Order, Magistrate Judge Treece recommended that Defendants’ motion for summary judgment (Dkt. # 53) be granted in its entirety, and the action dismissed. See Rep.-Rec. & Ord., Dkt. # 57. Plaintiff filed objections to 1 Dockets.Justia.com Magistrate Judge Treece’s recommendations. See Dkt. No. 58. II. STANDARD OF REVIEW When objections to a magistrate judge’s report and recommendation are lodged, the district 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); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The Court must make a de novo determination to the extent that a party makes specific objections to a magistrate’s findings.). “[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument.” Machicote v. Ercole, 2011 WL 3809920, at * 2 (S.D.N.Y., Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v. 7-Eleven, Inc., 662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same). General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey, 554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, 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.” 28 U.S.C. § 636(b). III. DISCUSSION Having considered Plaintiff’s objections and having completed a de novo review of 2 the issues raised by the objections, the Court accepts and adopts Magistrate Judge Treece’s recommendations for the reasons stated in his thorough report. IV. CONCLUSION For the reasons discussed above, the Court accepts and adopts Magistrate Judge Treece’s Report-Recommendation and Order (Dkt. # 57) in its entirety. Accordingly, Defendants’ motion for summary judgment (Dkt. # 53) is GRANTED, and all claims in this action are DISMISSED. The Clerk may enter judgment in favor of Defendants and close the file in this matter. IT IS SO ORDERED. Dated:September 23, 2015 3
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