Opinion
9:09-cv-1046
02-28-2013
FOR THE PLAINTIFF: Jose Ramos Pro Se 85-A-5899 Shawangunk Correctional Facility FOR THE DEFENDANTS: HON. ERIC T. SCHNEIDERMAN OF COUNSEL: BRIAN J. O'DONNELL Assistant Attorney General
(GLS/RFT)
APPEARANCES:
FOR THE PLAINTIFF:
Jose Ramos
Pro Se
85-A-5899
Shawangunk Correctional Facility
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
OF COUNSEL:
BRIAN J. O'DONNELL
Assistant Attorney General
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Jose Ramos brings this action under 42 U.S.C. § 1983, alleging that his Eighth Amendment rights were violated by defendants Dr. Maryann Genovese, Doctor Miller and John Does. (See Compl., Dkt. No. 1.) In a Report-Recommendation and Order (R&R) filed January 22, 2013, Magistrate Judge Randolph F. Treece recommended that defendants' motion for summary judgment, (see Dkt. No. 34), be granted and Ramos' Complaint be dismissed. (See generally R&R, Dkt. No. 38.) Pending are Ramos' objections to the R&R. (See Dkt. No. 39.) 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-recommendation and 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. Civ. 904CV484GLS, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). Where no party has filed an objection, only vague or general objections are made, or a party resubmits the same papers and arguments already considered by the magistrate judge, this court reviews the findings and recommendations of the magistrate judge for clear error. See id., at *4-5.
III. Discussion
Because Ramos' submission makes no mention of any particular errors in Judge Treece's R&R, and offers only the same unsubstantiated allegations that Judge Treece already found to be insufficient to withstand summary judgment, the court will only briefly address Ramos' arguments. (See Dkt. No. 39 at 2-7; R&R at 18); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (stating that "[a] party opposing summary judgment does not show the existence of a genuine issue of fact" by making conclusory assertions or speculating).
Although Ramos first avers that the Doe defendants should not be dismissed, he fails to identify how Judge Treece erred in recommending as much. (See Dkt. No. 39 at 2-4.) The fact that Ramos "made every possible conscious effort" to identify the Doe defendants does not excuse his failure to do so. (Id. at 2.) As Judge Treece stated, "despite the passage of time, multiple warnings by the Court, and ample opportunity to conduct discovery," Ramos has still not concretely identified the Doe defendants. (R&R at 15.) Even if his current belief regarding their identities is correct, a burden which he inexplicably places on the court to confirm, (see Dkt. No. 39 at 3-4), it would be highly prejudicial, and therefore inappropriate, to allow Ramos to amend his Complaint at this juncture, see, e.g., Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998). Thus, notwithstanding Ramos' failure to raise a specific objection, the court agrees with Judge Treece that the Doe defendants must be dismissed pursuant to Federal Rule of Civil Procedure 4(m).
Turning to his second argument, regarding the merits of his Eighth Amendment claim, the court again is unable to discern how Ramos believes Judge Treece erred. (See Dkt. No. 39 at 4-7.) In any event, Ramos has yet to offer any evidence, direct or circumstantial, that shows that Drs. Genovese and/or Miller had the requisite state of mind to satisfy the subjective prong of the deliberate indifference test. (See R&R at 22-24); see Chance v. Armstrong, 143 F.3d 698, 702-04 (2d Cir. 1998). As such, the lack of specificity in Ramos' submission is ultimately of no moment, as his Eighth Amendment claim is untenable.
In sum, Ramos' failure to raise anything other than general objections renders de novo review unnecessary. See Almonte, 2006 WL 149049, at *4-5. Having found no clear error in the R&R, the court accepts and adopts Judge Treece's R&R in its entirety.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Randolph F. Treece's January 22, 2013 Report-Recommendation and Order (Dkt. No. 38) is ADOPTED in its entirety; and it is further
ORDERED that defendants' motion for summary judgment (Dkt. No. 34) is GRANTED and all claims against them are DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
February 28, 2013
Albany, New York
_________
Gary L. Sharpe
Chief Judge
U.S. District Court