Rivers v. Spinnella

Filing 67

ORDER: ORDERED that Magistrate Judge Treece's November 4, 2010 Report-Recommendation and Order is Accepted in its entirety; ORDERED that Defendant's motion for summary judgment 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 ______________________________________________ TYRONE RIVERS, Plaintiff,

v. SPINNELLA, Correctional Officer, Marcy Correctional Facility, Defendant. ______________________________________________

9:09-CV-309 (FJS/RFT)

APPEARANCES TYRONE RIVERS 07-A-6833 Elmira Correctional Facility C-12-28 P.O. Box 500 Elmira, New York 14902 Plaintiff pro se OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL The Capitol Albany, New York 12224 Attorneys for Defendant

OF COUNSEL

ADELE M. TAYLOR-SCOTT, AAG

SCULLIN, Senior Judge

ORDER In a Report-Recommendation and Order dated November 4, 2010, Magistrate Judge Treece recommended that the Court grant Defendant's motion for summary judgment and dismiss Plaintiff's complaint in its entirety. See Dkt. No. 62. Plaintiff filed objections to the

Report-Recommendation and Order, essentially raising the same arguments that he presented to Magistrate Judge Treece and failing to explain why the Court should excuse his failure to exhaust his administrative remedies. See Dkt. No. 64. 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 Treece's November 4, 2010 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendant's motion to for summary judgment is GRANTED and Plaintiff's complaint is DISMISSED; and the Court further

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ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and close this case. IT IS SO ORDERED. Dated: March 31, 2011 Syracuse, New York

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