United States District Court, N.D. New York
Marc Lewis Pro Se Gowanda Correctional Facility, Gowanda, NY, for the Plaintiff.
HON. ERIC T. SCHNEIDERMAN, New York State Attorney General GREGORY J. RODRIGUEZ, Assistant Attorney General, Albany, NY, for the Defendant.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff pro se Marc Lewis commenced this action against defendant Kevin Sheridan pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights. (Am. Compl., Dkt. No. 62.) Sheridan filed a motion to dismiss, seeking dismissal of Lewis' Eighth Amendment medical indifference claim. (Dkt. No. 63.)
In a Report-Recommendation and Order (R&R) dated October 3, 2013, Magistrate Judge David E. Peebles recommended that Sheridan's motion be granted. (Dkt. No. 70.) Lewis filed timely objections to the R&R. (Dkt. No. 71.) Later, on December 3, 2013, counsel for Sheridan filed a suggestion of death, stating that Sheridan-the only remaining defendant-passed away on November 8, 2013. (Dkt. No. 72.) On January 13, 2014, Lewis filed a motion to substitute pursuant to Fed.R.Civ.P. 25. (Dkt. No. 73.)
Pending before the court are Lewis' objections to the R&R, (Dkt. No. 71), and his motion to substitute, (Dkt. No. 73). For the reasons that follow, the R&R is adopted in its entirety, Lewis' motion to substitute is construed as a motion seeking an extension of time under Rule 6(b), and that motion is granted.
Lewis is a New York State inmate currently held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). ( See generally Am. Compl.) Lewis alleges that, on February 20, 2009 at the Mt. McGregor Correctional Facility, between 8:43 and 9:20 A.M., Sheridan, a corrections lieutenant, "punched [Lewis] from behind in his face, causing [Lewis] to be knocked out of his chair and un-conscious, injuring him to both the right and left side of his face." ( Id. at 1, 5.) Lewis further alleges that, despite having "at least twenty[-]five (25) minutes to contact medical personnel" and unlimited resources, Sheridan failed to seek medical attention for Lewis, resulting in additional pain and suffering. ( Id. at 5.)
Ultimately, Lewis visited the hospital and was given a head scan. ( Id. ) The medical records that Lewis appended to his amended complaint indicate that, at 11:00 A.M., 1:45 P.M., and 5:00 P.M., on February 20, 2009, Lewis had slight to moderate swelling on the right and left side of his face, but "no acute medical problems" or "other injuries or trauma, " and his oral cavity was intact. (Dkt. No. 62 at 9-13.) The medical records also showed that Lewis had "clear vision" and indicated that he "refus[ed] ice" for the swelling. ( Id. at 10.) Additional medical records dated February 23, 2009 indicate that there was no trauma noted, the swelling decreased, and there were no visual changes. ( Id. )
III. 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. Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, only vague or general objections are filed, or a party resubmits the same papers and arguments already ...