Opinion
9:10-CV-1066 (MAD/RFT)
03-22-2012
DERRICK HAMILTON, Plaintiff, v. BRIAN FISHER1, Commissioner of New York State Department of Correctional Services, JOSEPH T. SMITH, Superintendent of Shawangunk Corr., JOHN MALY, Deputy Shawangunk Corr. Fac., KAY KNOTT, Deputy of Shawangunk Corr. Fac., DENNIS GIGLIO, Captain of Shawangunk Corr. Fac., G. GARDNER, Lieutenant of Shawangunk Corr. Fac., R.K. WOODS, Superintendent of Shawangunk Corr. Fac., M. SHEAHAN, Deputy Supt. of Shawangunk Corr. Fac., SERGEANT BRAND, Upstate Corr. Fac., CURTIS DROWNS, Commissioner Hearing Officer, NORMAN BEZIO, Director of Special Housing, H. MOSS, Sergeant Shawangunk Corr. Fac., M. SIGNORELLA, Corr. Officer, Shawangunk Corr. Fac., D. FORBES, Corr. Officer, Shawangunk Corr. Fac., JOE WOLCZYK, COMMISSIONER HEARING OFFICER, NEIL HOCHMAN, Psychologist, Shawangunk Corr. Fac., SUSAN STRICKLAND, Mental Health Unit Chief Auburn Corr. Fac., OSMAN YILDIZ, Social Worker, Sullivan Corr. Fac., SUE ANN SMITH, Unit Chief, Sullivan Corr. Fac., DOCTOR MAHMUD, Psychiatrist, Sullivan Corr. Fac., DOREEN FABER, Social Worker, Auburn Corr. Fac., CHRISTOPHER P. MAYER, Unit Chief, Auburn Corr. Fac. Defendants.
DERRICK HAMILTON Plaintiff pro se OF COUNSEL: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York The Capitol Attorney for Defendants Cathy Y. Sheehan, Esq.
APPEARANCES:
DERRICK HAMILTON
Plaintiff pro se
OF COUNSEL:
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
The Capitol
Attorney for Defendants
Cathy Y. Sheehan, Esq.
Mae A. D'Agostino, U.S. District Judge:
ORDER
In this pro se action under 42 U.S.C. § 1983, plaintiff, an inmate in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), claims that defendants violated his Eighth Amendment rights, First Amendment rights and Due Process rights. Additionally, plaintiff alleges that defendants retaliated against him for filing grievances and conspired against him. Defendants' moved to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 47). The motions were referred to United States Magistrate Judge Randolph R. Treece for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Magistrate Judge Treece issued a Report- Recommendation (Dkt. No. 52) recommending that defendants' motion to dismiss be granted in part and denied in part.
The Clerk is directed to append Judge Treece's Report-Recommendation to this decision, and familiarity is presumed. (Dkt. No. 52).
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When a party files specific objections to a magistrate judge's report-recommendation, 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." 28 U.S.C. § 636(b)(1). When a party fails to make specific objections, however, the court reviews the magistrate judge's report for clear error. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008); see also Gamble v. Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations omitted). After the appropriate review, "the court 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).
After careful review of all of the papers herein, including the Magistrate Judge's Report-Recommendation, and no objections submitted thereto, it is
ORDERED that:
1. Magistrate Judge Treece's Report-Recommendation and Order is ADOPTED for the reasons stated therein.
2. The Clerk of the Court shall serve a copy of this Order and Magistrate Judge Treece's February 29, 2012 Report-Recommendation and Order on all parties in compliance with the Local Rules.
IT IS SO ORDERED. Dated: March 22, 2012
Albany, New York
___________
Mae A. D'Agostino
U.S. District Judge