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Phillips v. Lavalley

United States District Court, N.D. New York

March 24, 2014

RALPH BUCK PHILLIPS, Plaintiff,
v.
T. LAVALLEY, et al., Defendants.

RALPH BUCK PHILLIPS Malone, New York, Plaintiff Pro Se.

ERIC T. SCHNEIDERMAN, Attorney General for the State of New York RICHARD LOMBARDO, ESQ., Assistant Attorney General Albany, New York, Attorney for Defendants.

MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, Sr. District Judge.

In this pro se inmate civil rights action, defendants move (Dkt. No. 33) for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff did not submit opposition to the motion. Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge Christian F. Hummell issued a Report-Recommendation and Order (Dkt. No. 35) recommending that the motion be granted in part and denied in part.

Neither party has submitted an objection. The docket reflects that plaintiff has twice refused service of the Report-Recommendation and Order (Dkt. No. 36). "As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point." Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). A pro se litigant must be given notice of this rule, see Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); here, however, the Report-Recommendation and Order provides the proper notice, and any failure to receive notice is due to plaintiff's conduct.[1]

The Court has reviewed Magistrate Judge Hummel's Report-Recommendation and Order - which thoroughly addresses this 60-page handwritten complaint - and accepts it in its entirety.

It is therefore

ORDERED that the Report-Recommendation and Order (Dkt. No. 35) is accepted; and it is further

ORDERED that defendants' Rule 12(b)(6) motion (Dkt. No. 33) is granted in part and denied in part as follows:

Dismissal is denied as to:
• Plaintiff's Eighth Amendment excessive force claims against defendants James and Lee;
• Plaintiff's Eighth Amendment deliberate indifference claims regarding his mental health treatment against defendants Waldron, Berggren, and Savage; and
• Plaintiff's Eighth Amendment deliberate indifference claims regarding his medically approved insoles against ...

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