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Pacheco v. Pataki

September 9, 2010

MILTON MUSA PACHECO, PLAINTIFF,
v.
GEORGE E. PATAKI, ELLIOT SPITZER, ANTHONY ELLIS, GEORGE B. ALEXANDER, E. WOODS, BRIAN FISHER, LUCIEN J. LECLAIRE, JR., ROBERT DENNISON, CHAIRMAN OF THE PAROLE BOARD, AND JOHN AND/OR JANE DOES, DEFENDANTS.



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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Magistrate Judge Lowe's August 31, 2009 Report-Recommendation, see Dkt. No. 71, and Plaintiff's objections thereto, see Dkt. No. 72.

II. BACKGROUND

Plaintiff Milton Musa Pacheco filed this action pursuant to 42 U.S.C. § 1983, claiming that Defendants deprived him of legal materials on two occasions. Specifically, Plaintiff alleged that, while he was housed at Clinton Correctional Facility, several correctional officers confiscated his personal property, including legal materials, pursuant to a policy that allowed inmates only six draft bags of property. Plaintiff had seven draft bags of property. See Dkt. No. 12 at ¶¶ 142-146. Plaintiff claimed that Defendants deprived him of his legal materials from October 10, 2006, through November 7, 2006. As a result, he was not able to draft and timely serve a discovery request in one of his pending cases.*fn1 Since Plaintiff's discovery request in that case was late, defense counsel refused to respond to it; and Magistrate Judge Treece denied Plaintiff's motion to compel. See id. at ¶¶ 150-153. Plaintiff complained about the deprivation of his legal materials to Defendant LeClaire, who "lightly disregarded" the complaint. See id. at ¶ 148. Plaintiff has also alleged that he informed Defendant Fisher, who refused to intervene. See id. at ¶ 155.

In addition, Plaintiff claimed that, on December 15, 2006, Defendant Woods harassed him, called him insulting names, and asked him why he was suing the State. See id. at ¶¶ 157-158. Defendant Woods then confiscated "a lot" of Plaintiff's legal materials, see id. at ¶ 160, the majority of which was eventually returned, see id. at ¶ 163. Plaintiff filed grievances with Defendant Fisher, in which he objected to the confiscation of his legal materials. See id. at ¶ 156.

Magistrate Judge Lowe issued a Report-Recommendation dated August 31, 2009, in which he recommended that this Court (1) grant Defendants Woods, Fisher, and LeClaire's motion to dismiss for failure to state a claim and (2) dismiss Plaintiff's claims against the Doe Defendants and Defendant George B. Alexander for failure to serve pursuant to Federal Rule of Civil Procedure 4(m). See Report-Recommendation at 14.

Plaintiff filed objections to Magistrate Judge Lowe's recommendations. See Dkt. No. 72. In his objections, Plaintiff claimed that Magistrate Judge Lowe erred when (1) he concluded that Plaintiff had not sufficiently alleged a violation of his rights to access the courts and recommended that the Court dismiss the claims against Defendants Woods, Fisher and LeClaire and (2) when he recommended that the Court dismiss his claims against the Doe Defendants and Defendant Alexander.

III. DISCUSSION

A. Standard of Review

When a party makes specific objections to a magistrate judge's report-recommendation, the court reviews de novo "'those portions of the report or specified proposed findings or recommendations to which objection is made.'" Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (quoting 28 U.S.C. § 636(b)(1)(C)) (footnote omitted). If, however, the parties do not object or make only general objections to the recommendations, the court reviews the report-recommendation for clear error or manifest injustice. See id. (citation and footnote omitted). After an appropriate review of the report-recommendation, "the Court may 'accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)(1)(C)).

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). This Rule does not require Plaintiff to assert detailed factual allegations, but he must do more than list the elements of the cause of action and state a conclusion before the court may accept such allegations as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). Bare assertions and conclusory statements do not constitute "factual allegations" and are not entitled to the presumption of truth. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009).

A plaintiff's factual allegations must also plausibly suggest that he is entitled to relief. See id. This standard is not met with conclusory statements that rely on "the possibility that a plaintiff might later establish some 'set of [undisclosed] facts' to support recovery." Twombly, 550 U.S. at 561. However, this standard does "not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. [If] the plaintiff[] . . . ...


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