Perez v. Fischer et al
Filing
51
DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 48 ) is APPROVED and ADOPTED in its ENTIRETY. ORDERED, that Defendants' Motion for summary judgment (Dkt. No. 40 ) is GRANTED as to: (1) Defendants Fischer, Artus, LeClai re, and Racette; (2) Plaintiff's claims of conspiracy against Defendants Keysor and Miller; and (3) Plaintiff's First Amendment access to courts and Sixth Amendment claims; and DENIED as to all other Defendants and claims. ORDERED, that D efendants Fischer, Artus, LeClaire, and Racette are terminated from this action. ORDERED, that all "John/Jane Doe" Defendants are DISMISSED without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Signed by Senior Judge Lawrence E. Kahn on 3/30/12. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CARLOS PEREZ,
Plaintiff,
-against-
9:10-CV-0518 (LEK/DRH)
BRIAN FISCHER, Commissioner;
LUCIEN J. LeCLAIRE, JR., Deputy
Commissioner; JOHN DOE, Inspector
General of NYS DOCS; DALE ARTUS,
Superintendent, Clinton Correctional
Facility; S. RACETTE, Deputy
Superintendent, Clinton Correctional
Facility; D. KEYSOR, Deputy
Superintendent of Administration, Clinton
Correctional Facility; D. HOLDRIDGE,
Captain, Clinton Correctional Facility;
MILLER, Lieutenant, Clinton
Correctional Facility; R. FURNIA,
Sergeant, Clinton Correctional Facility;
K. RABIDEAU, Clinton Correctional
Facility; D. DUQETTE, Clinton
Correctional Facility; S. TOUSIGNANT,
Clinton Correctional Facility; ST. LOUIS,
Clinton Correctional Facility; MUSSEN,
Clinton Correctional Facility; and
JOHN/JANE DOES ##1-5, Clinton
Correctional Facility,
Defendants.
DECISION and ORDER
This matter comes before the Court following a Report-Recommendation filed on March 1,
2012, by the Honorable David R. Homer, United States Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and L.R. 72.3(c) of the Northern District of New York. Dkt. No. 48 (“Report-Rec.”).
After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned,
including the Objections by Plaintiff Carlos Perez (“Plaintiff”), which were filed on March 15,
2012. Dkt. No. 49 (“Objections”).
The 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). 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); see also Brown v. Peters, No.
95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). “A [district] judge . . . 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).
Plaintiff raises objections to the portions of the Report-Recommendation pertaining to: (1)
Plaintiff’s failure to exhaust his administrative remedies; (2) the personal involvement of Defendant
Racette; (3) Plaintiff’s claim for denial of access to the courts; (4) Plaintiff’s conspiracy claim; (5)
Plaintiff’s due process claim; and (6) dismissal of “John/Jane Doe” defendants. Obj. at 3-10.
Accordingly, the Court has reviewed these portions of the Report-Recommendation de novo, and the
remainder of the Report-Recommendation for clear error. After a careful review of the record – and
taking all of Plaintiff’s Objections into consideration – the Court concludes that the the ReportRecommendation should be approved and adopted in its entirety for the reasons stated therein.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 48) is APPROVED and
ADOPTED in its ENTIRETY; and it is further
ORDERED, that Defendants’ Motion for summary judgment (Dkt. No. 40) is GRANTED
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as to: (1) Defendants Fischer, Artus, LeClaire, and Racette; (2) Plaintiff’s claims of conspiracy
against Defendants Keysor and Miller; and (3) Plaintiff’s First Amendment access to courts and
Sixth Amendment claims; and DENIED as to all other Defendants and claims; and it is further
ORDERED, that Defendants Fischer, Artus, LeClaire, and Racette are terminated from this
action; and it is further
ORDERED, that all “John/Jane Doe” Defendants are DISMISSED without prejudice
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.
DATED:
March 30, 2012
Albany, New York
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