The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge
Currently before the Court, in this pro se prisoner civil rights action filed by Mashama Hill ("Plaintiff") against the three above-named employees of the New York State Department of Corrections and Community Supervision ("Defendants"), are (1) Defendants' motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and/or failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), and (2) United States Magistrate Judge Baxter's Report-Recommendation recommending that Defendants' motion be granted in part and denied in part. (Dkt. Nos. 10, 21.) No objections have been filed and the deadline in which to do so has expired. For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; and Defendants' motion is granted in part and denied in part.
Plaintiff filed his Complaint in this action on April 11, 2011. (Dkt. No. 1.) Generally, construed with the utmost of liberality, Plaintiff's Complaint essentially claims that, between approximately November 2007 and May 2008, at Upstate Correctional Facility in Dannemora, New York, Defendants committed the following constitutional violations against him: (1) Defendants Bellnier, McDonald and Patterson failed to protect him from another inmate and/or from corrections officers; and (2) Defendant Patterson used excessive force against him. (See generally Dkt. No. 1 [Plf.'s Compl.].) Plaintiff further claims that all Defendants are being sued in their "official" and "individual" capacities for Eighth and Fourteenth Amendment violations. (Id.) Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)
B. Defendants' Motion to Dismiss
On September 21, 2011, Defendants filed a motion to dismiss all of Plaintiff's claims for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and/or failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 10.) Generally, in support of their motion, Defendants argue as follows: (1) based on the factual allegations of Plaintiff's Complaint, his claims are time-barred; (2) Plaintiff's claims against the State of New York are barred by the Eleventh Amendment, depriving the Court of subject-matter jurisdiction over those claims; (3) based on the factual allegations of Plaintiff's Complaint, Plaintiff is barred from recovering monetary damages from Defendant Bellnier by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e); (4) Plaintiff has failed to state an actionable claim against Defendant Bellnier, a supervisor, due to his failure to allege facts plausibly suggesting that Bellnier was personally involved in the constitutional violation alleged; (5) Plaintiff fails to state an actionable excessive-force claim under the Eighth Amendment; and (6) based on the factual allegations of Plaintiff's Complaint, Defendants are protected from liability as a matter of law by the doctrine of entitled to qualified immunity. (Dkt. No. 10, Attach. 1.)
On October 31, 2011, Plaintiff filed a response to Defendants' motion. (Dkt. No. 18.) Generally, in his response, Plaintiff argues as follows: (1) Plaintiff timely filed this action; (2) monetary relief is recoverable against supervisory official such as Defendant Bellnier where, as here, they fail to protect an inmate or act upon receiving a grievance or complaint from that inmate; (3) Defendants McDonald and Patterson failed to address Plaintiff's claims of cell-mate threats; and (4) Plaintiff's Eighth Amendment excessive-force claim against Defendant Patterson should not be dismissed because Plaintiff's injuries were severe. (Id.)
C. Magistrate Judge Baxter's Report-Recommendation
On April 6, 2011, Magistrate Judge Baxter issued a Report-Recommendation recommending that Defendants' motion be granted in part and denied in part. (Dkt. No.21.) Familiarity with the grounds of Magistrate Judge Baxter's Report-Recommendation is assumed in this Decision and Order, which (again) is intended primarily for review by the parties.
Plaintiff did not submit an objection to the Report-Recommendation, and the deadline by which to do so has expired.
II. APPLICABLE LEGAL STANDARDS
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify  the portions of the proposed findings, recommendations, or report to which it has an objection and  the basis for the objection." N.D.N.Y. L.R. 72.1(c).*fn1 When performing such a de novo review, "[t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1). However, a district ...