White v. Sears et al
ORDER: ORDERED, that Magistrate Judge Lowe's June 20, 2011 Report-Recommendation-Order (Dkt. No. 22 ) is ADOPTED in its entirety for the reasons stated therein. ORDERED, that defendants' motions to dismiss the complaint (Dkt. Nos. 16 , [ 20]) are GRANTED. ORDERED, that plaintiff may file an amended complaint within THIRTY (30) DAYS of the date of this Order. ORDERED, that, if plaintiff fails to file an amended complaint within THIRTY (30) DAYS of the date of this Order, the Clerk o f the Court shall enter judgment dismissing this action without further order of this Court. (Notice of Compliance Deadline 8/12/2011, Case Review Deadline 9/12/2011) Signed by U.S. District Judge Mae A. D'Agostino on 7/12/11. (Order served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
L. SEARS, DOCTOR CHOLOM, DOCTOR
ALI, and NURSE MONTROY,
138 Larkspur Lane
Locus Grove, Virginia 22508
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany, New York 12224
Attorneys for defendants
WILLIAM J. MCCARTHY, JR., AAG
Mae A. D'Agostino, U.S. District Judge:
On June 21, 2010, plaintiff pro se filed the present action, alleging that he was denied
adequate medical care in deliberate indifference to his serious medical needs in violation of his
Eighth Amendment rights. See Dkt. No. 1. In a Report-Recommendation-Order dated June 20,
2011, Magistrate Judge Lowe recommended that the Court grant defendants' motions to dismiss
and that the Court allow plaintiff to file an amended complaint within thirty (30) days of this
Court's order adopting his recommendations. See Dkt. No. 22. Plaintiff failed to object to
Magistrate Judge Lowe's Report-Recommendation-Order.
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). When a party
fails to make specific objections, however, the court reviews the magistrate judge's report for
clear error. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008); see also Gamble v.
Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations 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).
Having reviewed Magistrate Judge Lowe's June 20, 2011 Report-Recommendation-Order
and the applicable law, the Court concludes that Magistrate Judge Lowe correctly determined that
plaintiff's complaint fails to state claim.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Lowe's June 20, 2011 Report-Recommendation-Order is
ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that defendants' motions to dismiss the complaint (Dkt. Nos. 16, 20) are
GRANTED; and the Court further
ORDERS that plaintiff may file an amended complaint within THIRTY (30) DAYS of
the date of this Order; and the Court further
ORDERS that, if plaintiff fails to file an amended complaint within THIRTY (30) DAYS
of the date of this Order, the Clerk of the Court shall enter judgment dismissing this action
without further order of this Court; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
compliance with the Local Rules.
IT IS SO ORDERED.
Dated: July 12, 2011
Albany, New York
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