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Clay v. Kellmurray

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


May 13, 2010

DANIEL CLAY, PLAINTIFF,
v.
R.N. KELLMURRAY, NURSE, CLINTON CORRECTIONAL FACILITY, DEFENDANT.

The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

In this pro se action under 42 U.S.C. § 1983, plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), claims that defendant, a nurse at Clinton Correctional Facility, violated his constitutional rights under the Eighth Amendment. Defendant's motion for summary judgment (Dkt. No. 23) was referred to United States Magistrate Judge David R. Homer for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Magistrate Judge Homer issued a Report and Recommendation (Dkt. No. 35) recommending that the motion for summary judgment be granted and the complaint dismissed.

Plaintiff has objected to the Report and Recommendation. Given the nature of plaintiff's objection, the Court reviews the Report and Recommendation de novo. See 28 U.S.C. § 636(b)(1)(C). The Court agrees with Magistrate Judge Homer's Report and Recommendation in all respects. Plaintiff attaches additional documents to his objection, states that he had difficulty obtaining them, and requests that the Court consider them. The Court has reviewed these records and finds that they do not alter the conclusion that the action lacks merit for the reasons set forth in the Report and Recommendation. Accordingly, on de novo review, and upon considering the documents attached to plaintiff's objection, the Court accepts the Report and Recommendation and grants defendant's motion for summary judgment.

It is therefore

ORDERED that the Report and Recommendation by United States Magistrate Judge David R. Homer (Dkt. No. 35) is accepted in its entirety; and it is further

ORDERED that defendant's motion for summary judgment (Dkt. No. 23) is granted and the action dismissed on the merits.

IT IS SO ORDERED.

20100513

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