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Aror Ark O'diah v. A. Mawhir

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 16, 2011

AROR ARK O'DIAH, PLAINTIFF,
v.
A. MAWHIR, CAYUGA CORRECTIONAL FACILITY; MICHAEL CORCORAN, SUPERINTENDENT, CAYUGA CORRECTIONAL FACILITY; SCOTT C. CARLSEN, SUPERINTENDENT, ULSTER CORRECTIONAL FACILITY; P. BUTTARAZZI, CHIEF PHYSICIAN, CAYUGA CORRECTIONAL FACILITY INMATE CLINIC; JESUS FLORESCA, CHIEF PHYSICIAN, ULSTER CORRECTIONAL FACILITY INMATE CLINIC; K. STEVENSON, CAYUGA CORRECTIONAL FACILITY PROGRAM COORDINATOR; MS. DALY; MARY WARNER, NURSE ADMINISTRATOR, CAYUGA CORRECTIONAL FACILITY; AND T. NAPOLI, 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). In his December 14, 2010 Report-Recommendation and Order, Magistrate Judge Homer recommended that Defendants' motion to dismiss (Dkt. No. 53) be:

1. DENIED as to O'Diah's claims of,

A. Retaliation, including violations of New York Correction Law § 138(4), against defendants Mawhir, Dr. Buttarazzi, and Warner;

B. Medical indifference against defendants Dr. Buttarazzi, Dr. Floresca, and Warner;

C. Medically inappropriate work conditions against defendants Dr. Buttarazzi, Warner, Stevenson, and Mawhir;

D. Excessive force against defendant Mawhir; and

E. Failure to protect against defendant Mawhir; and

2. GRANTED as to all other claims and all other defendants. Plaintiff has filed objections to these recommendations.

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 recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C).

III. DISCUSSION

Having reviewed de novo those portions of the Report-Recommendation and Order that Plaintiff has lodged objections to, the Court determines to adopt the recommendations for the reasons stated in Magistrate Judge Homer's thorough report.

IV. CONCLUSION

Therefore, the Court ADOPTS the recommendations made by Magistrate Judge Homer in their entirety. Accordingly, it is hereby ORDERED that Defendants' motion to dismiss (Dkt. No. 53) is:

1. DENIED as to O'Diah's claims of,

A. Retaliation, including violations of New York Correction Law § 138(4), against defendants Mawhir, Dr. Buttarazzi, and Warner;

B. Medical indifference against defendants Dr. Buttarazzi, Dr. Floresca, and Warner;

C. Medically inappropriate work conditions against defendants

Dr. Buttarazzi, Warner, Stevenson, and Mawhir;

D. Excessive force against defendant Mawhir; and

E. Failure to protect against defendant Mawhir; and

2. GRANTED as to all other claims and all other defendants, and these other claims are DISMISSED.

IT IS SO ORDERED .


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