UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK
April 20, 1998
EDDIE STEELE, Plaintiff,
HANS G. WALTER, Superintendent, auburn Correctional Facility, Defendant.
The opinion of the court was delivered by: ARCARA
This case was referred to Magistrate Judge Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1), on March 18, 1997. On March 6, 1997, defendant filed a motion to dismiss and on March 14, 1997, plaintiff filed a motion to amend the petition. On, October 16, 1997, Magistrate Judge Carol E. Heckman filed a Report and Recommendation and Order, granting plaintiff's motion to amend the petition and recommending that defendant's motion to dismiss be granted. Plaintiff filed objections to the Magistrate Judge's Report and Recommendation on October 30, 1997.
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. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions of the parties, the Court adopts the proposed findings of the Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Heckman's Report and Recommendation, defendant's motion to dismiss is granted. The Clerk of the Court is directed to take all steps necessary to close this case.
The Court hereby denies petitioner's motion for a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right. 42 U.S.C. § 2253. Further, the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is hereby denied. Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
IT IS SO ORDERED.
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
Dated: April 20, 1998