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Wallace v. Fisher

United States District Court, N.D. New York

January 5, 2015

JACOLBY WALLACE, a/k/a Jocolby Wallace, Plaintiff,
v.
C.O. FISHER, Watertown Corr. Facility, Defendant.

JACOLBY WALLACE, 12-B-0802 Plaintiff, Pro Se Mid-State Correctional Facility Marcy, New York.

HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York, CATHY Y. SHEEHAN, ESQ., Assistant Attorney General, Counsel for Defendant, Albany, New York, GLENN T. SUDDABY, United States District Judge.

DECISION AND ORDER

GLENN T. SUDBABY, District Judge.

Currently before the Court, in this pro se prisoner civil rights action filed by Jacolby Wallace ("Plaintiff") against the above-captioned New York State correctional officer ("Defendant") asserting claims of excessive force and retaliation, are (1) Defendant's motion to dismiss Plaintiff's Amended Complaint for failure to state a claim, and (2) United States Magistrate Judge Christian F. Hummel's Report-Recommendation recommending that Defendant's motion be denied. (Dkt. Nos. 23, 28.) Neither of the parties has filed an objection to the Report-Recommendation, and the deadline by which to do so has expired. ( See generally Docket Sheet.)

When no objection is made to a report-recommendation, the Court subjects that reportrecommendation 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.: see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) ("I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.") (internal quotation marks omitted).

Here, based upon a careful review of this matter, the Court can find no clear error with Magistrate Judge Hummel's Report-Recommendation. (Dkt. No. 5.) Magistrate Judge Hummel employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. ( Id. ) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 28) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendant's motion to dismiss (Dkt. No. 23) is DENIED.


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