Rucano v. Koenigsmann et al

Filing 76

ORDER granting in part and denying in part 64 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations re 75 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Treece's March 3, 2014 Report -Recommendation and Order is ADOPTED in its entirety for the reasons set forth therein; and the Court further ORDERS that Defendants' motion to dismiss (Dkt. No. 64) is GRANTED in part and DENIED in part; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/31/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ANTHONY RUCANO,
Plaintiff,
vs.

9:12-cv-00035
(MAD/RFT)

CARL J. KOENIGSMANN, et al.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ANTHONY RUCANO
11-A-0528
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Attorneys for Defendants

CHRISTOPHER W. HALL, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983,
alleging that Defendants violated his rights under the Eighth Amendment of the United States
Constitution. See Dkt. No. 60. Plaintiff's claims arise out of Defendants' alleged failure to
provide Plaintiff with adequate dental care.
In his second amended complaint, Plaintiff contends, among other things, that Defendant
Oliveira violated his Eighth Amendment rights by refusing to provide him with three crowns,

improperly performing a root planing procedure, and delaying root planing treatments. Further,
Plaintiff alleges that Defendant Kullman failed to treat his cavity and also delayed root planing
treatments. Id. Currently pending before the Court is Defendant's motion to dismiss. See Dkt.
No. 64.
In a March 3, 2014 Report-Recommendation and Order, Magistrate Judge Randolph F.
Treece recommended that the Court (1) grant Defendants' motion to dismiss as to Plaintiff's
supervisory liability claims against Defendants Bellamy, LaValley, and Fischer; (2) grant
Defendants' motion to dismiss as to Plaintiff's state law negligence and medical malpractice
claims; (3) deny Defendants' motion to dismiss as to Plaintiff's Eighth Amendment claims against
Defendants Oliveira and Kullman; and (4) deny Defendants' motion to dismiss as to Plaintiff's
supervisory liability claims against Defendant Koenigsmann. See Dkt. No. 75. None of the
parties objected to the Report-Recommendation and 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). 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).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
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Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Having carefully reviewed the March 3, 2014 Report-Recommendation and Order, the
parties' submissions and the applicable law, the Court finds that Magistrate Judge Treece
correctly recommended that the Court (1) dismiss Plaintiff's supervisory liability claims as to
Defendants Bellamy, LaValley, and Fischer; (2) dismiss Plaintiff's state law negligence and
medical malpractice claims as to all Defendants; and (3) deny Defendants' motion to dismiss in all
other respects. See Dkt. No. 75. Upon review of the thorough and well-reasoned ReportRecommendation and Order, the Court finds that Magistrate Judge Treece did not clearly err in
any of his recommendations.
Wherefore, the Court hereby
ORDERS that Magistrate Judge Treece's March 3, 2014 Report-Recommendation and
Order is ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Defendants' motion to dismiss (Dkt. No. 64) is GRANTED in part and
DENIED in part; and the Court further
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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: March 31, 2014
Albany, New York

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