Rheaume v. Pallito et al

Filing 59

OPINION AND ORDER ADOPTING 56 REPORT AND RECOMMENDATION granting 43 Motion to Dismiss, denying 48 Motion to Amend 5 Complaint to add an Eighth Amendment claim, otherwise granting the motion, and denying without prejudice 54 Motion for Appointment of Counsel. Signed by Chief Judge Christina Reiss on 8/14/2012. (pam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

2012 AUG 14 PM I: 28
CLERK
BY

Allen Rheaume,
Plaintiff,

v.

)

)

)

)

)

Andrew Pallito, Susan Onderwyzer,
Jackie Kotkin, David Peebles,
Michele Young, Cullen Bullard,
Keith Talon, Krista Prior,
Marshall Rich, Tom Rowden,
Sandra Olberg, Tammy Kennison,
Georgia Cummings, Jerri Brouillette,
Tammy Smith, Steve Hoke,
Anita Carbonell, Lynn Roberto,
Sue Random Kelly, Edward Holtrop,
and Heather Ward,
Defendants.

2J::i'::':CL:-::I:~RI(-:-,- ­
D!:PU1 Y

Case No. 5:11·cv-72

)
)
)
)
)
)
)
)
)
)
)
)
)
)

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 43, 48, 54 and 56)
This matter came before the court for a review of the Magistrate Judge's July 13,
2012 Report and Recommendation (R & R) in regards to three motions filed by the
parties. Defendants, who are officials at the Vermont Department of Corrections, have
moved to dismiss Plaintiff Allen Rheaume's claims for violations of the Eighth and
Fourteenth Amendments. Mr. Rheaume, a self·represented Vermont inmate, has moved
to amend his complaint to include new Eighth and Fourteenth Amendment claims as well
as a state law claim. Mr. Rheaume has further filed a motion requesting the appointment
of pro bono counsel. Neither party has objected to the R & R, and the deadline for doing
so has expired.

A district judge must make a de novo detennination of those portions ofa
magistrate judge's report and recommendation to which an objection is made. FED. R.
CIV. P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401,405 (2d Cir.
1999). The district judge may "accept, reject, or modity, in whole or in part, the findings
or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); accord

Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual
or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). When no timely objection is filed, the court need only satisty itself that there
is no clear error on the face of the record in order to accept the recommendation. See

Campbell v. United States Dist. Court, 501 F.2d 196,206 (9th Cir. 1974), cert. denied,
419 U.S. 879 (1974).
In his seventeen page R & R, the Magistrate Judge carefully reviewed the factual
record and the three motions before the court. He determined that Mr. Rheaume's claims
for Eighth and Fourteenth Amendment violations should be dismissed. He further
determined that Mr. Rheaume should not be pennitted to amend his complaint to allege
an additional Eighth Amendment violation, but that the other proposed amendments
should be permitted. Finally, he recommended that the court deny Mr. Rheaume's
motion to appoint counsel.
The court agrees with the Magistrate Judge's conclusions. For the foregoing
reasons, the court hereby ADOPTS the Magistrate Judge's R & R as the court's Order
and Opinion, GRANTS Defendants' motion to dismiss, DENIES the motion to amend
Mr. Rheaume's complaint to add an Eighth Amendment claim, otherwise GRANTS the
motion to amend, and DENIES without prejudice Mr. Rheaume's motion to appoint
counsel. A First Amended Complaint has been filed with the court, and Defendants are
required to file a response to the First Amended Complaint within seventeen (17) days of
this court's Order.

2

SO ORDERED.

,...

Dated at Rutland, in the District of Vermont, this

1ft

day of August, 2012.

Christina Reiss, Chief Judge
United States District Court

3