Opinion
9:16-CV-00275 (LEK/DEP)
12-29-2016
JAMES MAXWELL, Plaintiff, v. MR. MILLER, et al., Defendants.
ORDER
This matter comes before the Court following a Report-Recommendation filed on November 17, 2016, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 23 ("Report-Recommendation").
Within fourteen days after a party has been served with a copy of a magistrate judge's report-recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306-07, 306 n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) ("[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."). "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).
No objections were filed in the allotted time period. Docket. Accordingly, the Court has reviewed the Report-Recommendation for clear error and has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 23) is APPROVED and ADOPTED in its entirety; and it is further
ORDERED, that Defendants' Motion to Dismiss (Dkt. No. 14) is GRANTED as to Plaintiff's medical indifference and verbal harassment claims and DENIED as to Plaintiff's excessive force and failure-to-protect claims; and it is further
ORDERED, that Plaintiff has thirty (30) days to amend his Complaint (Dkt. No. 1) in order to cure the deficiencies identified in the Report-Recommendation (Dkt. No. 23) regarding his medical indifference claim; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED. DATED: December 29, 2016
Albany, New York
/s/_________
Lawrence E. Kahn
U.S. District Judge