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O'Diah v. State

March 2, 2010

AROR ARK O'DIAH, PLAINTIFF,
v.
THE STATE OF NEW YORK; BRIAN FISCHER; MICHAEL CORCORAN; MALCOLM R. CULLY; RONALD W. MOSCICKI; STEPHEN GUTER; C.O. RAMSAY; D. RICHARDSON; J. PEPIN; J. HAHN; MR. & LT. SHAW; HEREFORD INSURANCE COMPANY; JERRY MAKULIK; AND SCOTT C. CARLSEN, 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 by this Court to the Hon. David R. Homer, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). As Magistrate Judge Homer explained in his Report-Recommendation and Order dated January 20, 2010:

Plaintiff pro se Aror Ark O'Diah ("O'Diah"), an inmate currently in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, eleven DOCS employees ("State Defendants"), the State of New York, a private individual ("Makulik"), and his insurance company (together "Individual Defendants"), violated his constitutional rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, the New York State Constitution, and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.. Compl. (Docket No. 1). Presently pending is State Defendants' motion to dismiss or for a more definite statement pursuant to Fed. R. Civ. P. 8 and 10. Docket No. 28. O'Diah opposes dismissal but "will not object to file first amended complaint should the Court... order... [it]....". Docket No. 30, ¶12. Additionally, the Individual Defendants' move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). Docket No. 42, 45. O'Diah opposes the motion and files a cross-motion for dismissal. Docket No. 44. Rep. Rec. p. 6.

After discussing the motions, Magistrate Judge Homer recommended that:

1. State defendants' motion to dismiss (Docket No. 28) be GRANTED and O'Diah's complaint (Docket No. 1) be DISMISSED WITHOUT PREJUDICE as to all state defendants in their individual capacities and he be given thirty days after a final decision on these motions is received from the district court; and

2. The complaint be DISMISSED WITH PREJUDICE as to the State of New York and State defendants in their official capacities;

3. All claims pertaining to individual defendants be SEVERED and TRANSFERRED to Eastern District of New York;

4. The motion of individual defendants to dismiss the claims against them (Docket No. 42) be DENIED without prejudice to renewal after the claims against them are transferred to the Eastern District of New York; and

5. O'Diah's motion (Docket No. 44) be DENIED.

Id. pp. 18-19.

Plaintiff has filed objections to the Report-Recommendation.

II. STANDARD OF REVIEW

When objections to a magistrate judge's report and recommendation are lodged, the district 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). General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey, 554 F. Supp. 2d 301, 306 n.2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009).*fn1 After reviewing the Report-Recommendation, the Court may "accept, reject, or modify, in whole or in part, the findings or ...


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