Collins v. Artus et al

Filing 33

DECISION AND ORDER adopting 30 Report and Recommendations; denying as moot 32 Motion to Appoint Counsel ; granting Defts' 13 Motion to Dismiss and 26 Motion to Dismiss and the action is dismissed in its entirety with leave to replead. Signed by Senior Judge Thomas J. McAvoy on 3/9/09. (sfp, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ ARVIN COLLINS Plaintiff, -against9:08-CV-470 (TJM/DEP) DALE ARTUS, Superintendent, Clinton Correctional Facility, et al., Defendants. _________________________________________ 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 to the Hon. David E. Peebles, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. 636(b) and Local Rule 72.3(c). In a Report and Recommendation dated October 31, 2008, Magistrate Judge Peebles recommended that Defendants' motions for dismissal be granted and that Plaintiff's complaint be dismissed with leave to replead. Plaintiff has filed objections to the recommendation. II. STANDARD OF REVIEW W hen objections to a magistrate judge's Report and Recommendation are lodged, the Court makes a "de novo determination of those portions of the report or specified 1 proposed findings or recommendations to which objection is made." See 28 U.S.C. 636(b)(1)(C). After such a review, 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." Id. III. DISCUSSION Having reviewed the record de novo and having considered the issues raised in the objections, this Court has determined to accept and adopt the recommendation of Magistrate Judge Peebles for the reasons stated in the October 31, 2008 ReportRecommendation and Order. Therefore, it is hereby ORDERED that Defendants' motions for dismissal [dkt. # 13 & # 26] are GRANTED and the action is DISMISSED in its entirety with leave to replead. Plaintiff's pending motion for appointment of counsel [dkt. # 32] is DENIED AS MOOT. IT IS SO ORDERED. DATED:March 9, 2009 2

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