Opinion
9:10-cv-531 (GLS/GHL)
11-15-2011
WILLIAM HODGES, Plaintiff, v. WRIGHT et al., Defendants
APPEARANCES: FOR THE PLAINTIFF: William Hodges Pro Se 06-A-2600 Great Meadow Corr. Facility FOR THE DEFENDANTS HON. ERIC T. SCHNEIDERMAN New York State Attorney General Albany Office The Capitol OF COUNSEL: ADRIENNE J. KERWIN Assistant Attorney General
APPEARANCES:
FOR THE PLAINTIFF:
William Hodges
Pro Se
06-A-2600
Great Meadow Corr. Facility
FOR THE DEFENDANTS
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany Office
The Capitol
OF COUNSEL:
ADRIENNE J. KERWIN
Assistant Attorney General
Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Willaim Hodges brings this action under 42 U.S.C. § 1983, alleging his constitutional rights were violated by defendants. (See Am. Compl., Dkt. No. 19.) In a Report-Recommendation and Order (R&R) filed September 29, 2011, Magistrate Judge George H. Lowe recommended that plaintiff's Amended Complaint be dismissed. (See generally R&R, Dkt. No. 30.) Pending are Hodges's objections to the R&R. (See Dkt. No. 33.) For the reasons that follow, the R&R is adopted in its entirety.
The Clerk is directed to append the R&R to this decision, and familiarity therewith is presumed.
II. Standard of Review
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of the magistrate judge for clear error. See id.
III. Discussion
Although docketed as an objection, Hodges fails to raise any errors in the R&R. (See generally Dkt. No. 33.) In fact, he states: "Plaintiff respects the decision and recommendations of the court and agrees to amending his claims." (Id. at 2.) However, preceding this concession, Hodges renews his argument that Dr. DeAzevedo improperly treated his condition. (Id. at 1-2.) Because his assertions, even construed liberally, fail to state objections to the R&R, a de novo review is unnecessary.
Notably, the facts alleged in the "objection" deal with Dr. DeAzevedo's alleged mistreatment of Hodges condition. While these facts may be germane to a medical malpractice claim, they are irrelevant in a section 1983 action. (See R&R at 8.)
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In adopting Judge Lowe's recommendation, the court further cautions Hodges that, if he elects to file a Second Amended Complaint, it must be consistent with the R&R. The Second Amended Complaint must be filed within thirty (30) days of the date of this order and strictly comply with the requirements of, inter alia, N.D.N.Y. L.R. 7.1(a)(4) and Fed. R. Civ. P. 11(b). If plaintiff elects to file an amended complaint, defendants shall have fourteen (14) days to file the appropriate response, and/or renew their motion to dismiss.
IV. Conclusion
Having found no clear error in the R&R, the court accepts and adopts Judge Lowe's R&R in its entirety.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge George H. Lowe's September 29, 2011 Report-Recommendation and Order (Dkt. No. 30) is ADOPTED in its entirety; and it is further
ORDERED that defendants' motion to dismiss (Dkt. No. 22) is GRANTED; and it is further
ORDERED that all of plaintiff's claims are DISMISSED with leave to amend, except the New York Public Health Law claim, which is DISMISSED WITH PREJUDICE; and it is further
ORDERED that Hodges may—in accordance with the requirements of N.D.N.Y. L.R. 7.1(a)(4)—file a Second Amended Complaint, if he can, in good faith, allege sufficient facts to cure the deficiencies articulated in Judge Lowe's R&R, within thirty (30) days of this order; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties by mail and certified mail.
IT IS SO ORDERED.
November 15, 2011
Albany, New York
Gary L.Sharpe
U.S. District Judge