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Benitez v. Parmer

United States District Court, Second Circuit

September 20, 2013

HENRY BENITEZ, Plaintiff,
v.
WILLIAM PARMER, Nurse Practitioner; NANCY SMITH, Nurse Adm'r; PAULINE POWERS, Infection Control Nurse; AMBER LASHWAY, Nurse Practitioner; GLENN SCHROYER, Health Servs. Dir.; CARL J. KOENIGSMANN, Chief Med. Officer; GERALD OTIS, Deputy Superintendent; DAVID ROCK, Superintendent; Defendants.

HENRY BENITEZ, 97-A-2553, Malone, New York, Plaintiff, Pro Se.

CATHY Y. SHEEHAN, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, Counsel for Defendants.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this pro se prisoner civil rights action filed by Henry Benitez ("Plaintiff") against the eight above-named New York State correctional employees ("Defendants"), are (1) Defendants' motion to dismiss for failure to state a claim, (2) United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that Defendants' motion be granted in part and denied in part, and (3) Plaintiff's Objection to the Report-Recommendation. (Dkt. Nos. 32, 55, 56.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety. Defendants' motion is granted with respect to (1) all of Plaintiff's claims against Defendants Smith, Lashway, Powers, Schroyer, Otis and Rock, (2) Plaintiff's retaliation and conspiracy claims against Defendants Parmer and Koenigsmann, and (3) Plaintiff's failure-to-protect claim against Defendant Koenigsmann. However, Defendants' motion is denied with respect to Plaintiff's remaining claim-his deliberate-medical-indifference claim against Defendants Parmer and Koenigsmann.

I. RELEVANT BACKGROUND

Because this Decision and Order is primarily intended for the review of the parties, the Court will not recite (1) the allegations and claims in Plaintiff's Second Amended Complaint, (2) the arguments in the parties' memoranda of law on Defendants' motion to dismiss, (3) the findings and conclusions in Magistrate Judge Peebles' Report-Recommendation, and (4) the arguments in Plaintiff's Objection; rather, the Court will simply refer to reader to those filings, and add that the Report-Recommendation accurately summarizes Plaintiff's Second Amended Complaint and Defendants' memoranda of law. (Dkt. No. 30 [Plf.'s Second Am. Compl.]; Dkt. No. 32, Attach. 1 [Defs.' Memo. of Law]; Dkt. No. 32, Attach. 5 [Defs.' Suppl. Memo. of Law]; Dkt. No. 42 [Plf.'s Response]; Dkt. No. 46 [Plf.'s Suppl. Response], Dkt. No. 55; Dkt. No. 56 [Report-Recommendation].)

II. APPLICABLE LEGAL STANDARDS

A. Legal Standard Governing Review of a Report-Recommendation

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 [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).[1] When performing such a de novo review, "[t]he judge may... receive further evidence...." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.[2]

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2), (3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition.[3] Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.[4] Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id. [5]

After conducting the appropriate review, the Court 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)(C).

B. Legal Standard Governing a Motion to Dismiss for Failure to State a Claim

Magistrate Judge Peebles correctly recited the legal standard governing a motion to dismiss for failure to state a claim. (Dkt. No. 55 at Part III.A.) As a result, this standard is incorporated by reference in this Decision and Order, ...


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