Canales v. Southport Correctional Facility et al
ORDER ADOPTING REPORT AND RECOMMENDATION 63 and Decision and Order 64 . The defendants' motions to dismiss, Docket Items 42, 44, and 48, are DENIED; all defendants and all claims other than those in Claims 1-4 specified are dismissed; and th is case is referred back to Judge Scott consistent with the referral orders of March 25, 2016 41 , and September 22, 2015 29 . SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 2/7/2018. (Chambers mailed a copy of this Order to Luis A. Canales, 0A0768, Green Haven Correctional Facility, Box 4000, Stormville, NY 12582-0010.) (CMD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LUIS A. CANALES, #10-A-0768,
M. SHEANAN, et al.,
After considerable motion practice, on March 7, 2016, this case was reassigned
from the Hon. Richard J. Arcara to the undersigned. Docket Item 35. On March 25,
2016, I adopted the Report and Recommendation of Magistrate Judge Hugh B. Scott,
Docket Item 32, which had been issued before the reassignment of this case. Docket
Item 41. At the same time, I referred the case back to Judge Scott for all matters
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). Id.
Several defendants then moved to dismiss for failure to state a claim or for a
more definite statement. Docket Item 42. Defendant VonHagn later moved to dismiss
for failure to state a claim, Docket Item 44, and Defendant Bartlett did the same, Docket
Item 48. After Judge Scott granted the plaintiff five extensions of time to file his
response, on December 27, 2016, the plaintiff responded and cross-moved to amend
his complaint. Docket Items 60 and 61. On January 27, 2017, the defendants replied,
Docket Item 62, and on March 28, 2017, Judge Scott issued a Report and
Recommendation and Decision and Order (R&R/D&O) resolving or recommending the
resolution of all pending motions. Docket Items 63 and 64.
In sum, Judge Scott granted the plaintiff’s motion to file a third amended
complaint insofar as that complaint alleged (1) excessive force and retaliation claims
against defendants Lamb, Myers, and Shumaker; (2) a deliberate indifference to
medical needs claim against defendant Gorg; (3) a due process claim against defendant
Rafferty based on the alleged exclusion of evidence at a Superintendent Hearing; and
(4) a conditions-of-confinement claim against defendant Sheahan based on the
imposition of a restricted diet (collectively, “Claims 1-4”). He otherwise denied the
plaintiff’s motion to amend as futile. Judge Scott recommended that all other claims,
and all claims against any defendants not named above, be dismissed. He also
recommended that the defendants’ motions to dismiss, Docket Items 42, 44, and 48, be
denied in their entirety. See Docket Item 63.
The parties did not object to the Report and Recommendation, and the time to do
so now has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify, in whole or in part, the findings or
recommendation of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
A district court must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a
district court to review the recommendation of a magistrate judge to which no objections
are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless has
carefully reviewed Judge Scott’s R&R/D&O, in which he systematically and meticulously
evaluated each of the plaintiff’s claims against each defendant. Based on that review
and the absence of any objections, the Court accepts and adopts Judge Scott’s careful
and thoughtful recommendations in their entirety.
For the reasons stated above and in the R&R/D&O, the defendants’ motions to
dismiss, Docket Items 42, 44, and 48, are DENIED; all defendants and all claims other
than those in Claims 1-4 above are dismissed; and this case is referred back to Judge
Scott consistent with the referral orders of March 25, 2016, Docket Item 41, and
September 22, 2015, Docket Item 29.
Dated: February 7, 2018
Buffalo, New York
_s/Lawrence J. Vilardo______
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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