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McFadden v. Goord

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 14, 2006

REGINALD MCFADDEN, PLAINTIFF,
v.
GLENN S. GOORD, ET AL., DEFENDANTS.

DECISION AND ORDER

This matter comes before the Court following a Report, Recommendation and Order filed on August 31, 2005, by the Honorable David E. Peebles, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 80). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by both Plaintiff and Defendants, which were filed on September 14, 2005, and October 17, 2005, respectively. Dkt. Nos. 83 & 93.

It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved for the reasons stated therein.*fn1 *fn2 *fn3

As to Plaintiff's request for appointment of counsel contained in his Objections to the Report-Recommendation (Dkt. No. 83, at 2), that request is denied without prejudice to Plaintiff refiling a formal motion for appointment of counsel.

Accordingly, it is hereby

ORDERED, that the Report-Recommendation is APPROVED and ADOPTED in its ENTIRETY; and it is further

ORDERED, that Defendants' motion to dismiss (Dkt. No. 50) is GRANTED IN PART, (1) as to the claims that accrued prior to June 29, 2001, (2) as to the claims related to the issuance of the misbehavior report of June 17, 2004, and (3) as to Defendants Goord, Roy and Novello; and it is further

ORDERED, that Defendants' motion to dismiss is DENIED in all other respects, as discussed in Judge Peebles' Report-Recommendation; and it is further

ORDERED, that Plaintiff's request for appointment of counsel is DENIED WITHOUT PREJUDICE; and it is further

ORDERED, that Defendants Goord, Roy and Novello are DISMISSED from this case, WITHOUT PREJUDICE should Plaintiff choose to re-plead as discussed in Judge Peebles' Report-Recommendation; and it is further

ORDERED, that the Clerk serve a copy of this order on all parties. IT IS SO ORDERED.


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