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McChesney v. Hogan

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


September 7, 2010

DAVID MCCHESNEY, PLAINTIFF,
v.
MICHAEL HOGAN, PH.D.; DONALD SAWYER, PH.D.; JEFFREY AMIDON, M.D.; BARBARA STAPHOLZ, R.N.; MAUREEN ADAMS, R.N.; EDWIN GWYTHER; CHRISTOPHER MEYER; CHARMAINE BILL, R.N.; SAM LILLY, R.N.; TERRY MAXYMILLIAN; JEFFREY NOWICKI; MARY BULLIVANT, R.N.; AND T.A. POTTER, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.

The opinion of the court was delivered by: Scullin, Senior Judge

ORDER

Plaintiff commenced this action on February 11, 2008; and, at the Court's direction, filed an amended complaint on May 23, 2008. See Dkt. Nos. 1, 3, 4, 5. At the close of discovery, all of the Defendants, except Edwin Gwyther, who has neither been served nor appeared in this action, moved for summary judgment dismissing Plaintiff's claims on several grounds. See Dkt. No. 46. Plaintiff did not file any papers in opposition to Defendants' motion. In a Report and Recommendation dated August 17, 2010, Magistrate Judge Peebles recommended that this Court grant Defendants' motion for summary judgment and dismiss the complaint in all respects and that this Court dismiss sua sponte and without prejudice Plaintiff's claims against Defendant Gwyther. See Dkt. No. 48 at 48. Plaintiff did not file any objections to these recommendations.

When a party does not object to a magistrate judge's report-recommendation, the court reviews that report-recommendation for clear error or manifest injustice. See Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted). After conducting this review, "the Court may 'accept, reject, or modify, in whole or in part, the . . . recommendations made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)(1)(C)).

The Court has reviewed Magistrate Judge Peebles' August 17, 2010 Report and Recommendation for clear error and manifest injustice; and, finding none, the Court hereby

ORDERS that Magistrate Judge Peebles' August 17, 2010 Report and Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Defendants' motion for summary judgment is GRANTED in its entirety and Plaintiff's complaint is DISMISSED in all respects; and the Court further

ORDERS that Plaintiff's claims against Defendant Gwyther, who has neither been served nor appeared in this action, are DISMISSED sua sponte WITHOUT PREJUDICE; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

20100907

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