Quick v. Omittee et al

Filing 78

DECISION AND ORDER: ORDERED that the Court accepts and adopts Magistrate Judge Hummel's August 11, 2016 Report-Recommendation and Order, Dkt. No. 74 , in its entirety. Accordingly, defendants' motion for dismissal (Dkt. No. 50 ) of plaintiff's amended complaint (Dkt. No. 38 ) is GRANTED. All claims in plaintiffs amended complaint are DISMISSED without prejudice because of plaintiff's failure to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a). Signed by Senior Judge Thomas J. McAvoy on 9/20/16. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
DESMOND QUICK,
Plaintiff,
vs.

9:14-CV-1503
(TJM/CFH)

JOHN OMITTEE, et al.,
Defendants.
________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon.

Christian F. Hummel, United States Magistrate Judge, for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
In his August 11, 2016 Report-Recommendation and Order, Dkt. No. 74, Magistrate
Judge Hummel recommends that defendants’ motion for dismissal (Dkt. No. 50) of plaintiff’s
amended complaint (Dkt. No. 38) be granted, and that all claims in plaintiff’s amended
complaint be dismissed without prejudice because of plaintiff’s failure to exhaust his
administrative remedies pursuant to 42 U.S.C. § 1997e(a). Plaintif f filed objections to the
recommendations. Dkt. No. 76.
II.

STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are lodged, the
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district 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); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The
Court must make a de novo determination to the extent that a party makes specific
objections to a magistrate’s findings.). “[E]ven a pro se party's objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a second bite at the apple by simply
relitigating a prior argument.” Machicote v. Ercole, 2011 WL 3809920, at * 2 (S.D.N.Y.,
Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v. 7-Eleven, Inc.,
662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same).
General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey,
554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at
*2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, 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.” 28 U.S.C. § 636(b).
III.

DISCUSSION
Plaintiff’s objections are general and conclusory and failed to point to clear error.

Moreover, having considered Plaintiff’s objections and having completed a de novo review
of the issue raised by the objections, the Court accepts and adopts Magistrate Judge
Baxter’s recommendations for the reasons stated in his thorough report.

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IV.

CONCLUSION
For the reasons discussed above, the Court accepts and adopts Magistrate Judge

Hummel’s August 11, 2016 Report-Recommendation and Order, Dkt. No. 74, in its entirety.
Accordingly, defendants’ motion for dismissal (Dkt. No. 50) of plaintiff’s amended complaint
(Dkt. No. 38) is GRANTED. All claims in plaintiff’s amended complaint are DISMISSED
without prejudice because of plaintiff’s failure to exhaust his administrative remedies
pursuant to 42 U.S.C. § 1997e(a).
IT IS SO ORDERED.
Dated: September 20, 2016

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