Lewis v. Giardino

Filing 6

DECISION AND ORDER adopting Report and Recommendations re 4 Report and Recommendations and DISMISSING action in it's entirety. Signed by Senior Judge Thomas J. McAvoy on 3/12/15. (tab)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

RASHAWN E. LEWIS,
Plaintiff,
v.

1:15-CV-166
(TJM/ATB)

RICHARD GIARDINO,
Defendant.

THOMAS J. MCAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court

to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
In his Order and Report-Recommendation, Magistrate Judge Baxter ordered that
Plaintiff’s in forma pauperis application (Dkt. No. 2) be granted; recommended that the
action be dismissed in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) based on
absolute immunity and for failure to state a claim upon which relief can be granted; and
ordered that Plaintiff’s motion for appointment of counsel (Dkt. No. 3) be denied as moot.
See Rep. Rec. & Order, Dkt. # 4. Plaintiff filed an objection to Magistrate Judge Baxter’s
recommendation. See Dkt. No. 5.

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II.

STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are lodged,

the district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28
U.S.C. § 636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997) (The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate’s findings.).
III.

DISCUSSION
Having considered Plaintiff’s objections and having completed a de novo review of

the issues raised by the objections, the Court accepts and adopts Magistrate Judge
Baxter’s recommendations for the reasons stated in his report.
IV.

CONCLUSION
For the reasons discussed above, the Court accepts and adopts Magistrate Judge

Baxter’s Order and Report-Recommendation in its entirety. Accordingly, Plaintiff’s action
is DISMISSED IN ITS ENTIRETY pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) based on
absolute immunity and for failure to state a claim upon which relief can be granted. To the
extent that Plaintiff renews his motion for appointment of counsel in his objections, that
motion is denied as moot.
IT IS SO ORDERED.
Dated: March 12, 2015

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