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KOCH v. MAHMUD MIRZA

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


February 18, 1994

GERALD W. KOCH, D.D.S., Plaintiff,
v.
MAHMUD MIRZA, M.D., RUBINA MIRZA, D.D.S., ROBERT COFFEY, RUSSELL MASSARO, M.D., ELLIOTT G. RUBENSTEIN, JOHN O. SWEARINGEN, GENEVIEVE COLLINS, MICHAEL WEINER, C. RICHARD ORNDOFF, DAVID J. CARLINI, and PHILIP D. SMITH, Defendants.

HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT COURT

The opinion of the court was delivered by: RICHARD J. ARCARA

ORDER

This matter was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on April 8, 1992. Item No. 9. On December 4, 1991, defendants M. Mirza, R. Mirza, Coffey, Rubenstein, Collins, Weiner, Orndoff and Carlini filed a motion to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). On December 16, 1991, defendant Massaro filed a motion to dismiss the complaint on the same ground. *fn1" Defendant Smith filed his answer to the complaint on March 18, 1992, asserting a cross-claim against the State defendants for indemnification. On March 25,1992, the State defendants filed a motion to dismiss Smith's cross-claim. As of the filing of the motion to dismiss, defendant Swearingen had not been served with the summons and complaint and therefore did not join in the motion.

 On October 25, 1993, Magistrate Judge Foschio filed a very thorough Report and Recommendation recommending that the State defendants' motion to dismiss the complaint be granted; that the complaint be dismissed against defendants Smith and Swearingen; and that the State defendants' motion to dismiss defendant Smith's cross-claim be deemed moot, or, in the alternative, be granted on the merits. Item No. 20. Plaintiff filed objections to the Report and Recommendation on November 29, 1993. Item No. 23. The State defendants filed a response to plaintiff's objections on December 13, 1993, Item No. 24, and the Court heard oral argument on February 17, 1994.

 Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Although plaintiff purports to object to the entirety of Magistrate Judge Foschio's Report and Recommendation, the Court finds that he has asserted only one objection: that Magistrate Judge Foschio erred in finding that plaintiff failed to allege that he attempted to speak out publicly about Rubina Mirza. This objection is relevant to Magistrate Judge Foschio's consideration of plaintiff's § 1983 claim, and whether plaintiff had set forth a deprivation of any right, privilege or immunity protected by the Constitution or laws of the United States. See Item No. 20, at 6-9.

 Upon de novo review of the Report and Recommendation, and after reviewing the submissions of the parties, and hearing argument from counsel, the Court adopts the proposed findings of the Report and Recommendation with respect to plaintiff's objection. The Court notes that Magistrate Judge Foschio interpreted plaintiff's claims very broadly--reading into the complaint any possible claim plaintiff could be attempting to assert. Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendants' motion to dismiss the § 1983 claim based on the First Amendment is granted.

 With respect to defendants' motion to dismiss plaintiff's other claims, their motion to dismiss defendant Smith's cross-claim for indemnity, and Magistrate Judge Foschio's recommendation that the complaint be dismissed as to defendants Smith and Swearingen, based on the Court's review of the Report and Recommendation and the submissions of the parties, and no objections having been timely filed, the Court grants these motions and adopts these proposed findings for the reasons set forth in the Report and Recommendation.

 IT IS SO ORDERED.

 HONORABLE RICHARD J. ARCARA

 UNITED STATES DISTRICT COURT

 Dated: February 18, 1994


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