Webster v. Fischer et al

Filing 61

DECISION AND ORDER: ORDERED, that the 58 Report-Recommendation is APPROVED and ADOPTED in its ENTIRETY. ORDERED, that Defendant's 44 Motion for Summary Judgment is GRANTED, and that Plaintiff's 1 Complaint is DISMISSED. Signed by Senior Judge Lawrence E. Kahn on 3/9/10. (Decision and Order served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JAMES WEBSTER, Plaintiff, -against9:08-CV-0071 (LEK/DEP)

BRIAN FISCHER, Commissioner New York State Department of Correctional Services, et al., Defendants.

DECISION AND ORDER This matter comes before the Court following a Report-Recommendation filed on February 22, 2010 by the Honorable David E. Peebles, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. ReportRec. (Dkt. No. 58). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including Plaintiff James Webster's Objections, (Dkt. No. 14) ("Plaintiff's Objections"), which were filed on March 2, 2010, and Defendants R. Chapin, R. Clink, Michael Corcoran, A. Costello, Brian Fischer, Halcott, Hoadley, Michael Maher, and Tom Napoli's Letter Brief in Support of the Report and Recommendations (Dkt. No. 60), which were filed on March 4, 2010. It is the duty of this Court to "make 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). "A [district] judge . . . may accept, reject, or modify, in whole or in part,

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the findings or recommendations made by the magistrate judge." Id. Where, however, an objecting "`party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.'" Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007) (citations and quotations omitted)). This Court has considered the Plaintiff's Objections and has found that they simply reiterate the arguments made in his Complaint (Dkt. No. 1). Plaintiff does not object to any particular finding by the Magistrate, but rather, claims that "the Report Recommendation has no merit because it solely relies on defendants word and not the documented truth of plaintiff." Plaintiff's Objections at 6. Accordingly, the Court has reviewed the Magistrate's findings for clear error. Having discovered no such error, the Court has determined that the Report-Recommendation should be approved for the reasons stated therein. Accordingly, it is hereby ORDERED, that the Report-Recommendation (Dkt. No. 58) is APPROVED and ADOPTED in its ENTIRETY; and it is further ORDERED, that Defendant's Motion for summary judgment (Dkt. No. 44) is GRANTED, and that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED; and it is further ORDERED, that the Clerk serve a copy of this Order on all parties. IT IS SO ORDERED.

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DATED:

March 09, 2010 Albany, New York

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