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Fox v. Brown

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


February 21, 2007

ANTHONY FOX, PLAINTIFF,
v.
WILLIAM BROWN, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, ET AL., DEFENDANTS.

DECISION AND ORDER

This matter comes before the Court following a Report-Recommendation filed on January 12, 2007, by the Honorable Gustave J. DiBianco, 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. 21). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Defendants in this case, which were filed on January 17, 2007. Objections (Dkt. No. 22).

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 [district] judge . . . 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.

Accordingly, it is hereby

ORDERED, that the Report-Recommendation (Dkt. No. 21) is APPROVED and ADOPTED in its ENTIRETY; and it is further

ORDERED, that Defendants' Motion to dismiss (Dkt. No. 11) is GRANTED IN PART, and this action is DISMISSED IN ITS ENTIRETY as against Defendants BROWN, GUSMAN, and EAGEN; and it is further

ORDERED, that Defendants' Motion to dismiss (Dkt. No. 11) is GRANTED as to any STATE LAW OR REGULATORY CLAIMS; and it is further

ORDERED, that Defendants' Motion to dismiss (Dkt. No. 11) is DENIED with respect to the EIGHTH AMENDMENT CLAIMS ONLY against Defendants MILICEVIC, BHAVSAR, and LUCAS, without prejudice to Defendants filing a Motion for summary judgment; and it is further

ORDERED, that Defendants' Motion to dismiss (Dkt. No. 11) is DENIED with respect to Plaintiff's claim of retaliation against Defendant LUCAS only; and it is further

ORDERED, that Defendants' Motion to dismiss (Dkt. No. 11) is DENIED with respect to the conspiracy claim as to Defendants LUCAS and MILICEVIC; and it is further

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

20070221

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