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William Hodges v. Wright et al


November 15, 2011


The opinion of the court was delivered by: Gary L. Sharpe District Court Judge


I. Introduction

Plaintiff pro se Willaim Hodges brings this action under 42 U.S.C. § 1983, alleging his constitutional rights were violated by defendants. (See Am. Compl., Dkt. No. 19.) In a Report-Recommendation and Order (R&R) filed September 29, 2011, Magistrate Judge George H. Lowe recommended that plaintiff's Amended Complaint be dismissed.*fn1 (See generally R&R, Dkt. No. 30.) Pending are Hodges's objections to the R&R. (See Dkt. No. 33.) For the reasons that follow, the R&R is adopted in its entirety.

II. Standard of Review

Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of the magistrate judge for clear error. See id.

III. Discussion

Although docketed as an objection, Hodges fails to raise any errors in the R&R. (See generally Dkt. No. 33.) In fact, he states: "Plaintiff respects the decision and recommendations of the court and agrees to amending his claims." (Id. at 2.) However, preceding this concession, Hodges renews his argument that Dr. DeAzevedo improperly treated his condition. (Id. at 1-2.) Because his assertions, even construed liberally, fail to state objections to the R&R, a de novo review is unnecessary.*fn2

In adopting Judge Lowe's recommendation, the court further cautions Hodges that, if he elects to file a Second Amended Complaint, it must be consistent with the R&R. The Second Amended Complaint must be filed within thirty (30) days of the date of this order and strictly comply with the requirements of, inter alia, N.D.N.Y. L.R. 7.1(a)(4) and Fed. R. Civ. P. 11(b). If plaintiff elects to file an amended complaint, defendants shall have fourteen (14) days to file the appropriate response, and/or renew their motion to dismiss.

IV. Conclusion

Having found no clear error in the R&R, the court accepts and adopts Judge Lowe's R&R in its entirety.

WHEREFORE, for the foregoing reasons, it is hereby ORDERED that Magistrate Judge George H. Lowe's September 29, 2011 Report-Recommendation and Order (Dkt. No. 30) is ADOPTED in its entirety; and it is further ORDERED that defendants' motion to dismiss (Dkt. No. 22) is GRANTED; and it is further ORDERED that all of plaintiff's claims are DISMISSED with leave to amend, except the New York Public Health Law claim, which is DISMISSED WITH PREJUDICE; and it is further ORDERED that Hodges may-in accordance with the requirements of N.D.N.Y. L.R. 7.1(a)(4)-file a Second Amended Complaint, if he can, in good faith, allege sufficient facts to cure the deficiencies articulated in Judge Lowe's R&R, within thirty (30) days of this order; and it is further ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties by mail and certified mail.


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