Cruz v. Grosso

Filing 54

ORDER: ORDERED, that Magistrate Judge Dancks' March 5, 2014 Report-Recommendation and Order (Dkt. No. 34 ) is ACCEPTED in its entirety for the reasons stated therein. ORDERED, that Defendant's motion to dismiss for failure to state a cl aim, see Dkt. No. 13 , is DENIED. ORDERED that Plaintiff's claims of retaliation based on denial of legal pads and denial of medical care are DISMISSED sua sponte with leave to amend. ORDERED that Defendant is directed to answer the remainder of the complaint. Signed by Senior Judge Frederick J. Scullin, Jr. on 5/23/14. (served via regular mail on plaintiff) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
HERMAN CRUZ,
Plaintiff,
v.

9:13-CV-30
(FJS/TWD)

M. GROSSO,
Defendant.
______________________________________________
APPEARANCES

OF COUNSEL

HERMAN CRUZ
86-C-0468
Green haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant

KEVIN M. HAYDEN, AAG

SCULLIN, Senior Judge
ORDER
Currently before the Court are Magistrate Judge Dancks' March 5, 2014 ReportRecommendation and Order and Plaintiff's objections thereto. See Dkt. Nos. 34, 50. In her
Report-Recommendation and Order, Magistrate Judge Dancks recommended that this Court deny
Defendant's motion to dismiss for failure to state a claim, dismiss Plaintiff's claims of retaliation
based on denial of legal pads and denial of medical care, sua sponte, with leave to amend, and
direct Defendant to answer the remainder of the complaint. See Dkt. No. 34 at 17-18.

Plaintiff filed an objection to Magistrate Judge Dancks' recommendation that this Court
dismiss his claims of retaliation based on denial of medical care. See, generally, Dkt. No. 50.
After reviewing a magistrate judge's recommendations, the district court may decide to
accept, reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court conducts
a de novo review of the portions of the magistrate judge's recommendations to which a party
objects. See Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). "'"If, however, the
party makes only conclusory or general objections, or simply reiterates his original arguments,
the Court reviews the Report and Recommendation only for clear error."'" Salmini v. Astrue, No.
3:06-CV-458, 2009 WL 179741, *1 (N.D.N.Y. June 23, 2009) (quoting [Farid v. Bouey, 554 F.
Supp. 2d 301] at 306 [(N.D.N.Y. 2008)] (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672,
679 (S.D.N.Y. 2007))). Finally, even if the parties file no objections, the court must ensure that
the face of the record contains no clear error. See Wilds v. United Parcel Serv., Inc., 262 F.
Supp. 2d 163, 169 (S.D.N.Y. 2003) (quotation omitted).
The Court has thoroughly reviewed Plaintiff's objections to Magistrate Judge Dancks'
recommendations and finds them to be without merit. The basis for Magistrate Judge Dancks'
recommendation that the Court dismiss Plaintiff's retaliation claims based on denial of medical
care was that "Plaintiff fail[ed] to allege that Defendant took adverse action against Plaintiff
related to medical care . . . and therefore he [had] not alleged personal involvement of Defendant
in this claim." See Dkt. No. 34 at 17. In his objections to this recommendation, although
Plaintiff continues to complain about denial of medical care, he still has not alleged any basis for
finding that Defendant was personally involved in that denial. Thus, the Court finds that
Plaintiff's objections do not cure the defects that Magistrate Judge Dancks noted with respect to
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this part of Plaintiff's retaliation claims.
Accordingly, for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Dancks' March 5, 2014 Report-Recommendation and
Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant's motion to dismiss for failure to state a claim, see Dkt. No. 13,
is DENIED; and the Court further
ORDERS that Plaintiff's claims of retaliation based on denial of legal pads and denial of
medical care are DISMISSED sua sponte with leave to amend; and the Court further
ORDERS that Defendant is directed to answer the remainder of the complaint.

IT IS SO ORDERED.

Dated: May 23, 2014
Syracuse, New York

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