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Gaetano D'attore v. Cucharella

November 15, 2012




This matter comes before the Court following a Report-Recommendation filed on October 3, 2012 by the Honorable Randolph F. Treece, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. Dkt. No. 23 ("Report-Recommendation"). After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned, including the Objections by pro se Plaintiff Gaetano D'Attore ("Plaintiff"), which were filed on October 18, 2012. Dkt. No. 25 ("Objections"). The Court has considered the Objections and has determined that the Report-Recommendation should be approved and adopted in its entirety for the reasons stated herein.


Plaintiff filed this prisoner civil rights suit pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated by employees of the New York State Department of Corrections and Community Supervision ("DOCCS") during his incarceration at the Walsh Regional Medical Unit located in Rome, New York. See generally Dkt. No. 1 ("Complaint"). Liberally construed, Plaintiff's Complaint appears to state claims alleging, inter alia: (1) excessive use of force against Defendant Cucharale; (2) failure to protect against Defendant Durante; (3) failure to protect against Defendant Rabideau; and (4) verbal harassment against Defendant Durante.*fn1 See generally id.

The Court presumes the parties' familiarity with the factual allegations in this case and recites them herein only to the extent necessary to rule on the submissions pending before the Court. For a complete statement of the claims and their alleged factual basis, reference is made to the Complaint.

Presently before the Court is Defendants' Motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 18 ("Motion"). Plaintiff in turn submitted a Response in opposition to Defendants' Motion. Dkt. No. 20 ("Response"). In his Report-Recommendation, Judge Treece recommended that the Court grant in part and deny in part Defendants' Motion. Specifically, Judge Treece recommended that: (1) Plaintiff's claims against Defendant Rabideau be dismissed; (2) Plaintiff's verbal harassment claim against Defendant Durante be dismissed; (3) Defendants' Motion to dismiss Plaintiff's excessive force claim against Defendant Cucharelle be denied; (4) Defendants' Motion to dismiss Plaintiff's failure to protect claim against Defendant Durante be denied; and (5) all claims against the Defendants in their official capacities be dismissed. Report-Rec. at 18.


The Court is to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). Where, however, an objecting "party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error." Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007)) (citations and quotations omitted); see alsoBrown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."

28 U.S.C. § 636(b)(1).


For the most part, Plaintiff's Objections provide a general statement of Plaintiff's medical situation and hardships faced in prison, many of which do not appear to be related either to the contents of Plaintiff's Complaint or to the substance of the Report-Recommendation. To the extent that Plaintiff generally argues that the Report-Recommendation should not be adopted, the Court conducts a clear error review. Farid, 554 F. Supp. 2d at 307. Upon a thorough review of the record and the parties' submissions, the Court finds no such error.

Otherwise, the Objections do not appear to be responsive to the Report-Recommendation at all. That is, while Plaintiff requests that the Court decline to adopt the Report-Recommendation and dismiss certain claims, the bulk of Plaintiff's arguments appears to relate to parties not named in the Complaint and to incidents and issues that had not previously been raised.

While the Court is not certain what relief is being requested or against whom claims are being asserted, the Court notes that much of the Objections resemble a request for injunctive relief.*fn2 To the extent Plaintiff seeks injunctive relief, the Court instructs Plaintiff to file such a request as a separate motion. To the extent Plaintiff wishes to file such a motion, the Court also reminds Plaintiff that the relief requested must relate to the instant matter and that the Court may only grant preliminary injunctions that relate to the parties to this case and may not enjoin other parties who Plaintiff may feel have wronged him in some way.*fn3 See FED. R. CIV. P. 65(d) (stating that preliminary injunctions may only bind "(A) the parties; (B) the parties' officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)").

Further, to the extent Plaintiff wishes to state new claims or raise constitutional complaints against other parties, he must file a motion to amend his Complaint. In such a motion, he could clearly state his grievances, his alleged ...

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