Eleby v. Smith et al

Filing 38

ORDER: ORDERED that the Plaintiffs' objections to the Report-Recommendation of Magistrate Judge Peebles, dkt. # 37 , are hereby OVERRULED. The Report-Recommendation, dkt. # 36 , is hereby ADOPTED, and: 1. The Defendants' motion for summary judgment, dkt. # 29 , is hereby GRANTED; and 2. The action is DISMISSED. Signed by Senior Judge Thomas J. McAvoy on 3/13/17. (served on plaintiff by regular mail)(alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ TERELL K. ELEBY Plaintiff, vs. 9:15-cv-00281 (TJM/DEP) G. SMITH, et al., Defendants. ___________________________________________ Thomas J. McAvoy, United States District Judge ORDER This action, brought pursuant to 42 U.S.C. § 1983, alleges that the two remaining Defendants violated Plaintiff’s constitutional rights by assaulting him at the Auburn Correctional Facility in Auburn, New York. The action was referred to the Hon. David E. Peebles, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). The Report-Recommendation, dated January 9, 2017, recommended that the Court grant the Defendants’ motion for summary judgment and dismiss the case. The Plaintiff filed timely objections to the Report-Recommendation. When objections to a magistrate judge’s Report-Recommendation are lodged, the Court makes a “de novo determination of those portions of the report or specified proposed findings or 1 recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1). After such a review, 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.” Id. Having reviewed the record de novo and having considered the issues raised in the Plaintiff’s objections, this Court has determined to accept and adopt the recommendation of Magistrate Judge Peebles for the reasons stated in the Report-Recommendation. It is therefore ORDERED that the Plaintiffs’ objections to the Report-Recommendation of Magistrate Judge Peebles, dkt. # 37, are hereby OVERRULED. The ReportRecommendation, dkt. # 36, is hereby ADOPTED, and: 1. The Defendants’ motion for summary judgment, dkt. # 29, is hereby GRANTED; and 2. The action is DISMISSED. IT IS SO ORDERED. Dated:March 13, 2017 2

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