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Abbas v. Senkowski

July 11, 2006

MOHAMED ABBAS, PLAINTIFF,
v.
SUPT. SENKOWSKI, SUPERINTENDENT CLINTON CORR. FACILITY; STEWARD WOELLER, CLINTON CORR. FACILITY; T. EAGAN, GRIEVANCE DIRECTOR; OFFICER LITTLE, ALBANY OFFICER; JOSEPH DAVID, SUPERINTENDENT GREENE CORR. FACILITY; CAP. JOSEPH BELARGE, GREENE CORR. FACILITY; ANDREW HARVEY, HEARING OFFICER; DONALD SELSKY, DIRECTOR OF S.H.U. PROGRAMS, ALBANY, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pending are the defendants' objections to Magistrate Judge David Homer's Report-Recommendation. See Report-Recommendation, Dkt. No. 58. The court reviews specific objections pursuant to de novo standard, and unspecific objections pursuant to a clearly erroneous standard. Upon careful consideration of the arguments, the relevant parts of the record, and the applicable law, the court adopts the Report-Recommendation in its entirety.*fn1

II. Procedural History

Abbas alleges that his Eighth and Fourteenth Amendment rights were violated pursuant to 42 U.S.C. § 1983. See Compl., Dkt. No. 1. On September 30, 2004, the defendants filed a motion for summary judgment and Abbas responded. See Dkt. Nos. 50, 57. On September 9, 2005, Judge Homer issued a report recommending that the defendants' motion be denied in part, and granted in part. See Report-Recommendation, Dkt. No. 58. Judge Homer specifically found that Abbas failed to show personal involvement on behalf of defendants Eagen or David, and thereby recommended dismissal of all claims asserted against those two defendants. See id. at 5. Judge Homer also found that Abbas failed to exhaust his administrative remedies with respect to his Eighth Amendment medical care claim,*fn2 but ultimately, that the claim was meritless. See id. at 13, 16. Accordingly, Judge Homer recommended granting defendants' motion as to Abbas' Eighth Amendment medical care claim. Id.

Judge Homer also found that questions of fact exist regarding whether defendants are entitled to qualified immunity and whether Abbas had a protected liberty interest in being free from SHU confinement. See id. at 7, 11. As a result, he recommended denying defendants' motion as to Abbas' procedural due process claims. See id. at 7.Currently pending are the defendants' objections. See Dkt. No. 59.*fn3

III. Discussion

A. Standard of Review

By statute and rule, district courts are authorized to refer prisoner civil rights case to magistrate judges for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(A), (B); N.D.N.Y. R. 72.3(c); Gen. Order No. 12, § D(1)(G).

When a report and recommendation is filed, the parties have ten (10) days from receipt of the report to file specific, written objections to proposed findings and recommendations, and ten (10) days from the receipt of adversary objections to file responses. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); N.D.N.Y. R. 72.1(c). The local rules further require that the objections must specify the findings and recommendations which are the subject of the objections, and the substantive basis for these objections. See N.D.N.Y. R. 72.1(c).

The district court must review de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved by compliance with the specificity requirement. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); N.D.N.Y. R. 72.1(c). After review, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge ... [and] may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b).

If a party fails to object in a timely manner, it procedurally defaults and is not entitled to judicial review. See Almonte v. New York State Div. of Parole, No. 04-CV-484, 2006 WL 149049, at *3 (N.D.N.Y. Jan. 18, 2006) (citation omitted). "Although the doctrine of procedural default developed as a circuit appellate rule, it applies in the district courts as long as parties, including those appearing pro se, receive clear notice of the consequences of their failure to properly object." Id; see also Thomas v. Arn, 474 U.S. 140, 149 & n.7 (1985). "[T]he notice requirement is satisfied if the report at least states that the failure to object will preclude appellate review[.]" Almonte, 2006 WL 149049, at *3 (citation omitted).*fn4

Although failure to object or timely object constitutes procedural default, lack of specificity also gives rise to default. See id., at *4. The local rule requires that objections address specific findings and conclusions. See id. Therefore, a party that limits its specific objections to a part of a report's findings or recommendations procedurally defaults as to the remainder. See id. Frivolous or conclusory objections also fail to satisfy the specificity requirement. See id. Furthermore, mere resubmission of the same papers and arguments as submitted to the magistrate judge fails to comply with the specificity requirement and also results in default. See id.

The district court must review de novo those portions of the magistrate judge's findings and recommendations that have been properly preserved by compliance with the specificity requirement. See id., at *5; see also 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); N.D.N.Y. R. 72.1(c).*fn5 "De novo review requires that the court 'give fresh consideration to those issues to which specific objections have been made.' It will examine the entire record, and make an independent assessment of the magistrate judge's factual and legal conclusions." Almonte, 2006 WL 149049, at *5 (citation omitted). After review, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge...[and] may also receive ...


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