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WILMER v. TORIAN

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


October 7, 1997

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

The opinion of the court was delivered by: POOLER

ORDER

 The above matter comes to me following a Report-Recommendation by Magistrate Judge David N. Hurd, duly filed on the 29th day of August, 1997. Following ten days from the service thereof, the Clerk has sent me the entire file, including any and all objections filed by the parties herein.

 Plaintiff brought this action pursuant to 42 U.S.C. ยง 1983, alleging that defendants violated his Eighth Amendment rights by refusing medical treatment for an unspecified problem with plaintiff's leg while he was incarcerated at the Albany County Correctional Facility. Compl. Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on November 22, 1996, arguing that plaintiff's claim was one for, at most, medical malpractice, which was not cognizable under Section 1983. Dkt. No. 11. By letter dated January 28, 1997, plaintiff requested additional time in which to respond to defendants' motion. Dkt. No. 16. Plaintiff requested an extension until after his release date, March 21, 1997, so that he could obtain counsel to assist him in preparing his response. Magistrate Judge Hurd granted plaintiff's request and extended his time to respond to defendants' motion until May 1, 1997. Plaintiff failed to file a response. On August 29, 1997, Magistrate Judge Hurd recommended that I dismiss plaintiff's complaint. The copy of the report-recommendation sent to plaintiff at his address of record was returned as undeliverable.

 After careful review of all of the papers herein, including the Magistrate Judge's Report-Recommendation, and no objections having been submitted thereto, it is

 ORDERED, that:

 1. The Report-Recommendation is hereby approved;

 2. The defendants' motion is granted and the action dismissed for the reasons set forth in the magistrate judge's Report; and

 3. The Clerk shall serve a copy of this Order on the parties by regular mail.

 IT IS SO ORDERED.

 DATED: October 7, 1997

 Syracuse, New York

 ROSEMARY S. POOLER

 UNITED STATES DISTRICT JUDGE

19971007

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