Martinez v. New York State Department of Correctional Services

Filing 42

DECISION and ORDER: The 39 Report and Recommendation is accepted and adopted. ORDERED that 32 Motion to Dismiss is granted and plaintiff's second amended complaint is dismissed. Signed by Senior Judge Thomas J. McAvoy on 9/28/11.{order served via regular mail on all non-ecf parties} (nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------ANDRES MARTINEZ,

Plaintiff,
v.

09-CV-665

WILLIAM LAPE, Superintendent; JOAN SMITH,
Deputy Superintendent of Health; MR. KILLAR,
I.G.R.C. Supervisor; DR. MILLER, Facility Health
Service Director; DR. Paolano, R.M.U. Clinic;
MR. O’NEAL, Correction Officer; K. TALAVERA,
Counselor; MS. MARILYN, Dietician; MR. SEGATTO,
Sergeant; M. MOTTO, Nurse in R.M.U.;and V. BALDWIN,
Nurse Admisnistrator,

Defendants.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
This matter brought pursuant to 42 U.S.C. § 1983 was referred to the Hon.
Randolph F. Treece, United States Magistrate Judge, for a Report-Recommendation
pursuant to 28 U.S.C. §636(b) and Local Rules 72.3(c).
The Report-Recommendation dated March 28, 2011 recommended that the
Defendants’ Motion to Dismiss (Dkt. No. 32) be granted and Plaintiff’s Second Amended
Complaint (Dkt. No. 8) be dismissed.
Plaintiff filed timely objections to the Report-Recommendation, essentially raising
the same arguments presented to the Magistrate Judge. When objections to a Magistrate

Judge’s Report-Recommendation are lodged, the 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). After such 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.
Having reviewed the record de novo and having considered the issues raised in the
Plaintiff’s objections, the Court has determined to accept and adopt the recommendation of
Magistrate Judge Treece for the reasons stated in the Report-Recommendation.
Accordingly, Defendant’s motion to dismiss is GRANTED and Plaintiff’s Second
Amended Complaint is DISMISSED.
IT IS SO ORDERED.
Dated: September 28, 2011

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