Page v. Haider-Shah et al

Filing 27

ORDER: ORDERED that Magistrate Judge Baxter's March 2, 2010 Report-Recommendation is accepted in its entirety; ORDERED that Defendant's motion to dismiss is granted and Plaintiff's complaint is dismissed; ORDERED that the Clerk of the Court shall enter judgment in favor of Defendant and close this case. Signed by Senior Judge Frederick J. Scullin, Jr on 3/31/2011. (served plaintiff by regular mail) (mnc)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________ JAMES MALIK PAGE, Plaintiff, v. SYED HAIDER-SHAH, Physician, Marcy Correctional Facility, Defendant. ______________________________________________ 9:09-CV-68 (FJS/ATB)

APPEARANCES JAMES MALIK PAGE Poughkeepsie, New York 12601 Plaintiff pro se OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL The Capitol Albany, New York 12224 Attorneys for Defendant

OF COUNSEL

ROGER W. KINSEY, AAG

SCULLIN, Senior Judge ORDER In a Report-Recommendation dated March 2, 2010, Magistrate Judge Baxter recommended that the Court grant Defendant's motion to dismiss the complaint and dismiss Plaintiff's complaint in its entirety for failure to exhaust his administrative remedies. See Dkt. No. 18. Plaintiff filed objections to the Report-Recommendation, essentially raising the same arguments that he presented to Magistrate Judge Baxter and failing to address why the Court should excuse his failure to exhaust his administrative remedies. See Dkt. No. 22.

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). Despite the conclusory nature of Plaintiff's objections, the Court has reviewed the record de novo in light of the issues that Plaintiff raised in those objections. Having completed that review, the Court finds his objections to be without merit. Accordingly, the Court hereby ORDERS that Magistrate Judge Baxter's March 2, 2010 Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendant's motion to dismiss is GRANTED and Plaintiff's complaint is DISMISSED;1 and the Court further

ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and

The Court notes that, after reviewing the entire record in this case, it agrees with Magistrate Judge Baxter's assessment, that, if the Court were to review the complaint on its merits, based on Plaintiff's allegations, it is highly unlikely that he would have been successful on his deliberate indifference claims. -2-

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close this case. IT IS SO ORDERED. Dated: March 31, 2011 Syracuse, New York

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