Dotson v. Kuliesius et al
ORDER adopting 6 Report and Recommendations; finding as moot 10 Letter Request: The Court hereby ORDERS that Magistrate Judge Baxter's Order and Report-Recommendation is ADOPTED in its entirety for the reasons stated therein; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 9/9/21. (Copy served via regular and certified mail upon plaintiff)(ban)
Case 6:21-cv-00763-MAD-ATB Document 12 Filed 09/09/21 Page 1 of 3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DINA KULIESIUS, N.P.; R.N. ELIZABETH;
TEMITORE MARGARET DUBE, D.O.; DR.
ADAM P. FENTON; and ST. LUKE'S CAMPUS –
FSLH EMERGENCY ROOM,
2 Kennedy Plaza Tower Apartments
Utica, New York 13502
Plaintiff pro se
Mae A. D'Agostino, U.S. District Judge:
Plaintiff commenced this action on July 6, 2021, pursuant to 42 U.S.C. § 1983, claiming
that her rights were violated during a visit to the emergency room on May 21, 2021. See Dkt. No.
1. In an Order and Report-Recommendation dated July 14, 2021, Magistrate Judge Baxter
performed an initial review of the complaint and recommended that the Court dismiss without
prejudice the claims against Defendants because Defendants are not state actors. See Dkt. No. 6
at 5. Regarding any other non-federal claims that Plaintiff may be attempting to assert,
Magistrate Judge Baxter recommended that those claims be dismissed for lack of subject matter
jurisdiction. Id. at 6.
Case 6:21-cv-00763-MAD-ATB Document 12 Filed 09/09/21 Page 2 of 3
Plaintiff filed two objections to the Order and Report-Recommendation, on August 11,
2021 and August 12, 2021, respectively. See Dkt. Nos. 9, 11. In her objections, Plaintiff merely
provides the Court with additional facts relating to her claims but fails to address the deficiencies
identified in the Order and Report-Recommendation. Additionally, on August 11, 2021, Plaintiff
filed a motion "[r]equesting a court order for a forensic testing." Dkt. No. 10 at 1.
When a party files specific objections to a magistrate judge's report-recommendation, 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." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After 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).
In her objections to the Order and Report-Recommendation, Plaintiff fails to address the
deficiencies identified by Magistrate Judge Baxter. See Dkt. Nos. 9, 11. Neither objection offers
any explanation as to how a private hospital and its employees were acting "under the color of"
state law, which is a prerequisite to hold Defendants liable under 42 U.S.C. § 1983. Like
Magistrate Judge Baxter, the Court sees no plausible basis for the named Defendants to be
considered state actors, as required by Section 1983. Accordingly, that claim must be dismissed.
Since Plaintiff cannot cure this defect by better pleading, dismissal without prejudice, but without
an opportunity to amend, is appropriate. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
(2d Cir. 1993); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Moreover, because the
Case 6:21-cv-00763-MAD-ATB Document 12 Filed 09/09/21 Page 3 of 3
Court is dismissing this action, Plaintiff's motion for forensic testing is denied as moot.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Baxter's Order and Report-Recommendation
is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 9, 2021
Albany, New York
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