Opinion
No. 99 Civ. 9875(GBD).
May 23, 2001
MEMORANDUM OPINION and ORDER
On March 14, 2001, United States Magistrate Judge Michael H. Dolinger issued a Report and Recommendation to this Court recommending that defendants' motion to dismiss the complaint be granted in part and denied in part, thus permitting plaintiff to proceed with his constitutional excessive force and medical-care claims against all individual defendants sued in their individual capacities except the Superintendent. Additionally, Magistrate Judge Dolinger further recommended that plaintiff be given leave to re-plead his claim against the Superintendent.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten days to object to Magistrate Judge Dolinger's Report and Recommendation. On March 26, 2001, defendants wrote a letter to this Court requesting an extension of time until April 9, 2001 to file objections to the Report and Recommendation, which this Court granted. However, neither this Court nor Magistrate Judge Dolinger have received any objections from either party to this action.
In reviewing the Report and Recommendation, this Court "may accept, reject, or modify, in whole or in part the findings or recommendations made by the magistrate." 28 U.S.C. § 636 (b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 218 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (indicating that the may accept a report if it is "not facially erroneous.")
Accordingly, after conducting a review of the Report and Recommendation of United States Magistrate Judge Dolinger dated March 14, 2001, and finding that it contains no facial errors, it is hereby,
ORDERED AND ADJUDGED as follows:
1. The Report and Recommendation of United States Magistrate Judge Dolinger dated March 14, 2001, is approved, adopted and ratified by the Court;
2. It is ordered that defendants' motion to dismiss be granted in part, by dismissing with prejudice plaintiff's claims against New York State, DOCS and the individual defendants insofar as they are sued in their official capacities, as well as plaintiff's state-law claims, and by dismissing the claims against Superintendent McGinniss in his individual capacity with leave to re-plead against the Superintendent within thirty days of this Order. Defendants' motion to dismiss plaintiff's Eighth Amendment claims is denied.
SO ORDERED: