The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
On March 6, 2008, this Court issued a text order vacating its March 4, 2008 Order, which had been entered due to clerical error. The March 4, 2008 Order approved a Report and Recommendation of United States Magistrate Judge George H. Lowe (Dkt. No. 41) prior to the Court's receipt of plaintiff's objection thereto. The Court now addresses the Report and Recommendation after reviewing the objections (Dkt. Nos. 42 and 45), and decides the underlying motion (Dkt. No. 31).
Plaintiff pro se brings this prisoner civil rights action under 42 U.S.C. § 1983. Thirteen of the sixteen defendants (i.e., all defendants except Dr. Marshall Trabout, Sean Schollenberg, and John Doe, Shift Supervisor) move to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 31). Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), Magistrate Judge Lowe issued a thorough Report and Recommendation (Dkt. No. 41) recommending as follows: that counts one and two of plaintiff's amended complaint (Dkt. No. 7) be sua sponte dismissed with prejudice for failure to state a claim upon which relief might be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); or in the alternative, that the Court dismiss so much of count one as seeks compensatory damages against Bezerganian and Conway for inadequate mental health care, and so much of count two as alleges that Bunce violated plaintiff's constitutional rights by causing him to be deprived of certain legal materials for a period of eight days; and that plaintiff's claims against Sean Schollenberg and the John Doe defendant identified as the Shift Supervisor be sua sponte dismissed without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. Where only general objections are filed, the Court reviews for clear error. See Brown v. Peters, 1997 WL 599355,*2-* 3 (N.D.N.Y.), aff'd 175 F.3d 1007 (2d Cir. 1999). Failure to object to any portion of a report and recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993).
The moving defendants object (Dkt. No. 42) to Magistrate Judge Lowe's recommendation that the Court deny dismissal of counts four through seven. Upon de novo review, the Court adopts Magistrate Judge Lowe's analysis and holds that dismissal of these counts for failure to exhaust administrative remedies is not warranted at this stage of the action. In their objection, defendants propose that the Court convert the motion for dismissal of counts four through seven into a motion for summary judgment and allow plaintiff an opportunity to respond. In his Report and Recommendation, Magistrate Judge Lowe addresses the question of conversion and recommends that the Court decline to convert the motion, as follows:
Plaintiff has not been given the required notice of such a conversion of Defendants' motion, nor has he been given an adequate opportunity to present evidence to create an issue of fact, nor has he even been given an adequate opportunity to conduct discovery in this action. The Court recently refused to consider such materials on a motion to dismiss under very similar circumstances. See Pierce v. Monell, 06-CV-1290, 2007 WL 2847317, at *5-8 (N.D.N.Y. Sept. 26, 2007) (Kahn, J., adopting, on de novo review, Report-Recommendation by Lowe, M.J.).
Moreover, the Court would be at a severe disadvantage in deciding such a motion for summary judgment based on the current briefing of the parties. In particular, Defendants have not provided the Court with a Statement of Material Facts. For this reason alone, such a motion for summary judgment would be denied.
N.D.N.Y. L.R. 7.1(a)(3)[.]
Upon de novo consideration of the issue, this Court adopts Magistrate Judge Lowe's reasoning and declines to convert defendants' motion to dismiss causes of action four through seven into a motion for summary judgment.
Plaintiff objects (Dkt. No. 45) to Magistrate Judge Lowe's recommendation that causes of action one and two be dismissed with prejudice. On de novo review of the matter, the Court finds that dismissal of count one is not warranted at this stage of the case. Nor does the Court dismiss so much of count one as seeks compensatory damages against Bezerganian and Conway. Although it is probable that the physical injury requirement of 42 U.S.C. § 1997e(e) will prevent plaintiff from pursuing compensatory damages on his claim against Bezerganian and Conway for inadequate mental health care, the Court finds the amended complaint sufficient to withstand dismissal of the compensatory damages claim against these two defendants at the pleading stage, particularly in view of plaintiff's pro se status.*fn1
Magistrate Judge Lowe also recommends dismissal of count two, or in the alternative dismissal of so much of count two as claims that Bunce violated plaintiff's constitutional rights by causing him to be deprived of certain legal materials (specifically, copies of case law) for a period of eight days (specifically, from February 14, 2006, to February 20, 2006). Magistrate Judge Lowe observes that this eight-day delay does not amount to a constitutional deprivation and further notes that plaintiff did not respond to this aspect of defendants' motion in his opposition papers. Plaintiff does, however, address this issue in his objection to the Report and Recommendation. Because plaintiff raises the issue in his objection, and because the alleged deprivation of legal materials may arguably support plaintiff's retaliation claim, the Court does not dismiss it at the pleading stage. Nor is dismissal of the entire count two warranted at this stage of the action.
Finally, the Court adopts Magistrate Judge Lowe's discussion and recommendation that the claims against Sean Schollenberg and the John Doe defendant identified as Shift Supervisor be dismissed without prejudice.*fn2
ORDERED that the Report and Recommendation of United States Magistrate Judge George H. Lowe (Dkt. No. 41) is adopted to the extent ...