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Dove v. Harder

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


September 20, 2010

DONALD MACK DOVE, PLAINTIFF,
v.
DAVID HARDER, SHERIFF, BROOME COUNTY; AND MICHELE PARSONS, NURSE ADMINISTRATOR, BROOME COUNTY JAIL, DEFENDANTS.

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 defendants violated his constitutional rights under the First and Eighth Amendments with regard to his treatment for Hepatitis C and his access to the law library. Defendants moved for summary judgment (Dkt. No. 27) and plaintiff cross moved for summary judgment (Dkt. No. 30). The motions were 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. 38) recommending that defendants' motion for summary judgment be granted, plaintiff's cross motion be denied and the complaint dismissed.

Plaintiff has objected to the Report and Recommendation and argues that the Court should grant his cross motion for summary judgment stating that he, "met his burden of showing the absence of deputed [sic] material facts in the forms [of] affidavits and evidence to show that plaintiff was denied medical treatment in violation of the Eight[h] Amendment". Plaintiff interposes general objections regarding his medical treatment for Hepatitis C and does not present any objection to the Magistrate Judge's findings as they relate to his access to the law library.

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). Where, as here, a party interposes only general objections to a report and recommendation, the Court reviews for clear error or manifest injustice. See Brown v. Peters, 1997 WL 599355,*2-3 (N.D.N.Y.), aff'd without op., 175 F.3d 1007 (2d Cir.1999). Failure to object to any portion of a report and recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993).

The Court adopts Magistrate Judge Homer's summary of the record*fn1 and Report and Recommendation in all respects. The Court has reviewed the record and concludes that the action lacks merit for the reasons set forth in the Report and Recommendation. The objection revisits issues which were addressed in the Report and Recommendation and does not demonstrate a genuine issue of material fact to warrant a denial of defendants' motion for summary judgment and an award of summary judgment to plaintiff. Accepting as true all of plaintiff's allegations and other submissions, and interpreting them to raise the strongest arguments they suggest, the Court finds that plaintiff does not state a plausible claim to relief under the First Amendment, Eighth Amendment or any other constitutional provision. Accordingly, on de novo review, and upon considering plaintiff's objection, the Court accepts the Report and Recommendation and grants defendants' motion for summary judgment.

It is therefore ORDERED that the Report and Recommendation by United States Magistrate Judge David R. Homer (Dkt. No. 38) is accepted in its entirety; and it is further

ORDERED that plaintiff's cross motion for summary judgment (Dkt. No. 30) is denied; and it is further

ORDERED that defendants' motion for summary judgment (Dkt. No. 27) is granted and the action dismissed on the merits.

IT IS SO ORDERED.


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