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George R. Swanton v. Lawrence Sczerba

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


September 18, 2012

GEORGE R. SWANTON, PLAINTIFF,
v.
LAWRENCE SCZERBA, S.H.T.A. CENTRAL NEW YORK PSYCHIATRIC CENTER ALSO KNOWN AS LARRY HAGAN; AND CINDY LAW, MEDICAL DOCTOR, CENTRAL NEW YORK PSYCHIATRIC CENTER, DEFENDANTS.

The opinion of the court was delivered by: Hon. Norman A. Mordue, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

In this action pursuant to 42 U.S.C. § 1983, plaintiff pro se, an inmate in the custody of the New York State Department of Corrections and Community Services ("DOCCS"), alleges that defendants, two employees of the Central New York Psychiatric Center ("CNYPC"), violated his Eighth Amendment rights. Defendants move (Dkt. No. 116) for summary judgment dismissing the second amended complaint (Dkt. No. 84). Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), Magistrate Judge Homer has prepared a Report-Recommendation and Order (Dkt. No. 126) recommending that defendants' motion be granted. The Court adopts Magistrate Judge Homer's recitation of the facts, procedural background, and applicable law, and does not repeat them here.

Plaintiff has submitted an objection (Dkt. No. 127) and a supplemental objection (Dkt. No. 129). In view of the nature of plaintiff's objections, the Court conducts de novo review. See 28 U.S.C. § 636(b)(1)(C). On de novo review, the Court agrees with Magistrate Judge Homer's analysis and conclusions in all respects. Magistrate Judge Homer's factual summary is supported by the record and his discussion of the applicable law is correct. Magistrate Judge Homer properly applied the standard for summary judgment and properly accorded plaintiff the deference to which he is entitled as a pro se litigant. The issues plaintiff raises are either not supported by the record or are not material. For example, citing to page four of the Report-

Recommendation and Order, plaintiff takes issue with what he contends is a finding by Magistrate Judge Homer that plaintiff suffered no acute trauma to the shoulder from the incident. The cited portion of the Report-Recommendation and Order, however, is a quote from the affidavit of defendant Cindy Law relating her interpretation of the x-ray report, not a factual finding by Magistrate Judge Homer.*fn1 There is no merit to plaintiff's objections.

It is therefore

ORDERED that the Report-Recommendation and Order (Dkt. No. 126) is accepted and adopted in full; and it is further

ORDERED that defendants' motion for summary judgment (Dkt. No. 116) is granted and the action dismissed on the merits; and it is further

ORDERED that the Clerk of the Court is directed to serve copies of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York.

IT IS SO ORDERED.


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