O'Diah v. Mawhir et al

Filing 60

DECISION AND ORDER: The Court ADOPTS the 58 Report and Recommendation of Judge Homer in its entirety. ORDERED that 53 Motion to Dismiss is DENIED as to ODiah's claims of Retaliation, including violations of New York Correction Law § 13 8(4), against defendants Mawhir, Dr. Buttarazzi, and Warner; Medical indifference against defendants Dr. Buttarazzi, Dr. Floresca, and Warner; Medically inappropriate work conditions against defendants Dr. Buttarazzi, Warner, Stevenson, and Mawhir; Excessive force against defendant Mawhir; and Failure to protect against defendant Mawhir. GRANTED as to all other claims and all other defendants, and these other claims are DISMISSED. Signed by Senior Judge Thomas J. McAvoy on 3/16/11. {order served via regular mail on all non-ecf parties(nas )

O'Diah v. Mawhir et al

Doc. 60

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ AROR ARK O'DIAH, Plaintiff, v. A. MAWHIR, Cayuga Correctional Facility; MICHAEL CORCORAN, Superintendent, Cayuga Correctional Facility; SCOTT C. CARLSEN, Superintendent, Ulster Correctional Facility; P. BUTTARAZZI, Chief Physician, Cayuga Correctional Facility Inmate Clinic; JESUS FLORESCA, Chief Physician, Ulster Correctional Facility Inmate Clinic; K. STEVENSON, Cayuga Correctional Facility Program Coordinator; Ms. DALY; MARY WARNER, Nurse Administrator, Cayuga Correctional Facility; and T. NAPOLI, Defendants. _________________________________________ THOMAS J. McAVOY, Senior United States District Judge No. 9:08-CV-322 (TJM)(DRH)

DECISION & ORDER I. INTRODUCTION This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court to the Hon. David R. Homer, United States Magistrate Judge, for a ReportRecommendation pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). In his December 14, 2010 Report-Recommendation and Order, Magistrate Judge Homer recommended that Defendants' motion to dismiss (Dkt. No. 53) be:

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1. DENIED as to O'Diah's claims of, A. Retaliation, including violations of New York Correction Law § 138(4), against defendants Mawhir, Dr. Buttarazzi, and Warner; B. Medical indifference against defendants Dr. Buttarazzi, Dr. Floresca, and Warner; C. Medically inappropriate work conditions against defendants Dr. Buttarazzi, Warner, Stevenson, and Mawhir; D. Excessive force against defendant Mawhir; and E. Failure to protect against defendant Mawhir; and 2. GRANTED as to all other claims and all other defendants. Plaintiff has filed objections to these recommendations. 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)(C). General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey, 554 F. Supp. 2d 301, 306 n.2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009).1 After reviewing the Report-

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The Southern District wrote in Frankel:

The Court m ust m ake a de novo determ ination to the extent that a party m akes specific objections to a m agistrate's findings. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). W hen a party m akes only conclusory or general objections, or sim ply reiterates the original argum ents, the Court will review the report strictly for clear error. See Pearson-Fraser v. Bell Atl., No. 01 Civ. 2343, 2003 W L 43367, at *1 (S.D.N.Y. Jan. 6, 2003); Cam ardo v. Gen. Motors Hourly-Rate Em ployees Pension Plan, 806 F.Supp. 380, 382 (W .D.N.Y.1992). Sim ilarly, "objections that are m erely perfunctory responses argued in an

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Recommendation, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C). III. DISCUSSION Having reviewed de novo those portions of the Report-Recommendation and Order that Plaintiff has lodged objections to, the Court determines to adopt the recommendations for the reasons stated in Magistrate Judge Homer's thorough report. IV. CONCLUSION Therefore, the Court ADOPTS the recommendations made by Magistrate Judge Homer in their entirety. Accordingly, it is hereby ORDERED that Defendants' motion to dismiss (Dkt. No. 53) is: 1. DENIED as to O'Diah's claims of, A. Retaliation, including violations of New York Correction Law § 138(4), against defendants Mawhir, Dr. Buttarazzi, and Warner; B. Medical indifference against defendants Dr. Buttarazzi, Dr. Floresca, and Warner; C. Medically inappropriate work conditions against defendants Dr. Buttarazzi, Warner, Stevenson, and Mawhir; D. Excessive force against defendant Mawhir; and

attem pt to engage the district court in a rehashing of the sam e argum ents set forth in the original [papers] will not suffice to invoke de novo review." Vega v. Artuz, No. 97 Civ. 3775, 2002 W L 31174466, at *1 (S.D.N.Y. Sept. 30, 2002). 2009 W L 465645, at *2.

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E. Failure to protect against defendant Mawhir; and 2. GRANTED as to all other claims and all other defendants, and these other claims are DISMISSED.

IT IS SO ORDERED. DATED:March 16, 2011

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