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WILMER v. TORIAN

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


August 28, 1997

MICHAEL WILMER, Plaintiff,
v.
J.A. TORIAN, Dr.; KAREN CORSELL; SZOSTAK, Superintendent; JAMES CAMPBELL, Albany County Sheriff, Defendants.

The opinion of the court was delivered by: HURD

REPORT-RECOMMENDATION

 This matter was referred to the undersigned for Report and Recommendation by the Honorable Rosemary S. Pooler, United States District Judge, pursuant to the Local Rules of the Northern District of New York.

 Plaintiff commenced this § 1983 action alleging that his civil rights were violated because he was denied medial treatment. Plaintiff seeks damages in the total amount of Two-hundred Fifty-thousand Dollars ($ 250,000.00).

 The defendants have filed a motion to dismiss because plaintiff's complaint fails to state a cause of action pursuant to 42 U.S.C. § 1983, and pursuant to Fed. R. Civ. P. Rule 12(b)(6) and 12(b)(2). The plaintiff requested, and was granted, an extension to May 1, 1997 in which to respond to defendants' motion. The plaintiff has not filed any papers in opposition to the motion. "Failure to file any papers as required by this rule shall, unless for good cause shown, be deemed by the court as consent to the granting or denial of the motion, as the case may be." Rules of U.S. Dist. Ct. for Northern Dist. of N.Y., L.R. 7.1(b)(3).

 NOW, upon careful consideration of the notice of motion, affidavit of Karen A. Butler, Esq., sworn to on November 21, 1996, with exhibits attached, and the memorandum of law in support of defendants' motion thereof; and there being no opposition to the motion, it is

 RECOMMENDED that the motion be granted and the complaint be dismissed in its entirety as against all defendants.

 Pursuant to 28 U.S.C. § 636(b)(I), the parties have ten days within which to file written objections to the foregoing report. Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 121 L. Ed. 2d 696, 113 S. Ct. 825 (1992). Such objections shall be filed with the Clerk of the Court with a copy to be mailed to the chambers of the undersigned at 10 Broad Street, Utica, New York 13501. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(I); Fed. R. Civ. P. 72, 6(a), 6(e); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989); and it is

 ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation, by regular mail, upon the parties to this action.

 David N. Hurd

 United States Magistrate Judge

 Dated: August 28, 1997

 Utica, New York.

19970828

© 1992-2004 VersusLaw Inc.



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