Maxwell v. Miller et al
Filing
24
ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 23 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendants' Motion to Dismiss (Dkt. No. 14 ) is GRANTED as to Plaintiff's medical indifference and verbal harassment claims and DENIED as to Plaintiff's excessive force and failure-to-protect claims. ORDERED, that Plaintiff has thirty (30) days to amend his Complaint (Dkt. No. 1) in order to cure the deficiencies identified in the Report-Recommendation (Dkt. No. 23 ) regarding his medical indifference claim. Signed by Senior Judge Lawrence E. Kahn on 12/29/16. {order served via regular mail on plaintiff}(nas, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAMES MAXWELL,
Plaintiff,
-against-
9:16-CV-00275 (LEK/DEP)
MR. MILLER, et al.,
Defendants.
ORDER
This matter comes before the Court following a Report-Recommendation filed on
November 17, 2016, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 23 (“Report-Recommendation”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[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.”). “A [district] judge . . . 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).
No objections were filed in the allotted time period. Docket. Accordingly, the Court has
reviewed the Report-Recommendation for clear error and has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 23) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 14) is GRANTED as to
Plaintiff’s medical indifference and verbal harassment claims and DENIED as to Plaintiff’s
excessive force and failure-to-protect claims; and it is further
ORDERED, that Plaintiff has thirty (30) days to amend his Complaint (Dkt. No. 1) in
order to cure the deficiencies identified in the Report-Recommendation (Dkt. No. 23) regarding
his medical indifference claim; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
December 29, 2016
Albany, New York
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