Giap v. Fischer et al

Filing 17

DECISION AND ORDER: ORDERED, that the 13 Report-Recommendation is APPROVED and ADOPTED in its ENTIRETY. ORDERED, that Defendants' 9 Motion to Dismiss Plaintiff's Complaint is GRANTED. ORDERED, that Plaintiff's 11 Motion to Amend Complaint is DENIED without prejudice. Signed by Senior Judge Lawrence E. Kahn on 5/11/10. (Decision and Order served on plaintiff by regular mail) (alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK THANH GIAP Plaintiff, -againstBRIAN FISCHER, Commissioner, Department of Correctional Services, NANCY ANTHONY, Nurse, Eastern Correctional Facility Defendants. 9:09-CV-503 (LEK/RFT) DECISION AND ORDER This matter comes before the Court following a Report-Recommendation filed on March 10, 2010 by the Honorable Randolph F. Treece, 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. 13). On March 10, 2010, Plaintiff Thanh Giap ("Plaintiff") requested, and was granted, a 120-day extension to file objections to the Report-Recommendation. Dkt. No. 15. Plaintiff filed objections ("Objections") on May 3, 2010. Dkt. No. 16. This Court is 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, 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)). The Court has considered Plaintiff's Objections (Dkt. No. 16), undertaken a de novo review of the record, and determined that the Report-Recommendation (Dkt. No. 13) should be approved for the reasons stated therein. For the above reasons, it is hereby ORDERED, that the Report-Recommendation (Dkt. No. 13) is APPROVED and ADOPTED in its ENTIRETY; and it is further ORDERED, that Defendants' Motion to Dismiss Plaintiff's Complaint (Dkt. No. 9) is GRANTED; and it is further ORDERED, that Plaintiff's Motion to Amend Complaint (Dkt. No. 11) is DENIED without prejudice, and it is further ORDERED, that the Clerk serve a copy of this Order on all parties. IT IS SO ORDERED. DATED: May 11, 2010 Albany, New York 2

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