The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se ("Johnson") brings this action pursuant to 42 U.S.C. § 1983. He alleges that the defendants violated his constitutional rights under the First, Fifth, Eighth and Fourteenth Amendments by verbally and physically assaulting him, and subsequently denying him adequate medical care for injuries he sustained in that assault. See Compl. ¶ 1, Dkt. No. 1. The State, on behalf of defendants Tedford, Snow, Giambruno, Khan, and Miller, filed a motion for partial summary judgment which was referred to Magistrate Judge David E. Peebles for report and recommendation.*fn1 See Dkt. No. 35; see also 28 U.S.C. § 636(b)(1)(A), (B); N.D.N.Y. R. 723(c); Gen. Order No. 12, § D(1)(G). Judge Peebles recommended that the motion be granted in part and denied in part.
Both parties have now filed timely objections. See Dkt. Nos. 35, 39.*fn2
Specific objections will be reviewed under a de novo standard, while the remainder of the objections are general and will be reviewed under a clearly erroneous standard. See Almonte v. N.Y. State Div. of Parole, No. 9:04-CV-484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006). Upon careful consideration of the arguments, the relevant parts of the record, and the applicable law, the court adopts the Report-Recommendation in part and rejects it in part.
A party's objection to the findings and recommendations of the Magistrate Judge must be filed within 10 days of receiving the Magistrate's recommendation and order. See id. at *2-6. Objections must be written and specific, which is to say they must "specify the findings and recommendations to which [the party] object[s], and the basis for their objections." Id.
Those recommendations and findings as to which the party has made timely, specific objection must be reviewed de novo. Id. However, those as to which the party has notmade timely and/or specific objection are not entitled to any review, although the court may, in its discretion, elect to conduct a review nonetheless. Id. While the court may conduct a discretionary review pursuant to any standard it sees fit, this court has consistently applied a "clearly erroneous" standard. Id. Under this standard a recommendation or finding will be overturned only if "the court determines that there is a mistake of fact or law which is obvious and affects substantial rights." Id.
Objections based on arguments not raised as a matter of first impression before the Magistrate Judge are also not entitled to any review. See id. In such a situation the court may again elect to conduct a discretionary review, this time using a de novo standard as a matter of necessity, since the Magistrate has not had an opportunity to pass on the argument. See id.
Preliminarily, the court particularizes the claims Johnson asserts. Under 42 U.S.C. § 1983, Johnson initially sets forth causes of actions for excessive use of force, assault and battery, negligence, denial of medical care, and confinement in segregation in violation of the First, Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution. See Compl. ¶ 1, Dkt. No. 1. However, the only cognizable causes of action the court can discern under § 1983 are for excessive use of force and denial of medical care in violation of the Eighth Amendment. Accordingly, to the extent the complaint may be read as asserting other claims, they are dismissed.
The State initially objects to Judge Peebles' excusal of Johnson's failure to file affidavits or comply with N.D.N.Y. R. 7.1(a)(3)*fn3 , and the Judge's reliance on the unsworn complaint as the equivalent of an affidavit. See Aff. re R&R ¶¶ 6-7, Dkt. No. 35.
While it is true that Johnson has not filed any affidavits in response to the motion for summary judgment, he has filed assorted other exhibits. See Resp., Dkt. No. 28. In addition, he has provided a 7.1(a)(3) statement which roughly responds to the defendants' statement of material facts. Id. While these filings are far from ideal, courts must afford pro se litigants special latitude in order to ensure they are not denied access to the courts because of procedural technicalities. See Singleton v. Caron, No. 9:03- CV-00455, 2006 WL 2023000, at *3 n.5 (N.D.N.Y. July 18, 2006). Here, Judge Peebles relied on the factual assertions made in ...