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Collins v. Artus

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 9, 2009

ARVIN COLLINS PLAINTIFF,
v.
DALE ARTUS, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. David E. Peebles, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).In a Report and Recommendation dated October 31, 2008, Magistrate Judge Peebles recommended that Defendants' motions for dismissal be granted and that Plaintiff's complaint be dismissed with leave to replead. Plaintiff has filed objections to the recommendation.

II. STANDARD OF REVIEW

When objections to a magistrate judge's Report and Recommendation are lodged, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C). After such a review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id.

III. DISCUSSION

Having reviewed the record de novo and having considered the issues raised in the objections, this Court has determined to accept and adopt the recommendation of Magistrate Judge Peebles for the reasons stated in the October 31, 2008 Report-Recommendation and Order.

Therefore, it is hereby

ORDERED that Defendants' motions for dismissal [dkt. # 13 & # 26] are GRANTED and the action is DISMISSED in its entirety with leave to replead. Plaintiff's pending motion for appointment of counsel [dkt. # 32] is DENIED AS MOOT.

IT IS SO ORDERED.

20090309

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