Lefebvre v. Pallito et al
Filing
29
OPINION AND ORDER ADOPTING IN PART 17 REPORT AND RECOMMENDATION granting in part and denying in part 17 Motion to Dismiss. Signed by Chief Judge Christina Reiss on 2/25/2013. (pac)
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DISTRICT.
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
WILLIAM LEFEBVRE,
Plaintiff,
v.
ANDREW PALLITO, ADAM MICKEL,
MARK POTANAS, and
JOSHUA RUTHEFORD,
Defendants.
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FL
2013 fEB 25 PM ,: 01
Case No. 5:12-cv-163
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OPINION AND ORDER ADOPTING IN PART MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 17 & 23)
This matter came before the court for a review of the Magistrate Judge's
December 17,2012 Report and Recommendation ("R & R") in the above-captioned
matter (Doc. 23). Defendants, who are officials at the Vermont Department of
Corrections, have filed a motion to dismiss Plaintiffs claim that they failed to protect
him from another inmate during his incarceration. Plaintiff did not respond to that
motion. Neither party has objected to the R & R, and the deadline for doing so has
expired.
A district judge must make a de novo determination 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 modifY, 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 satisfy 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).
Plaintiffhas filed a claim under 42 U.S.C. § 1983, claiming that Defendants failed
to protect him from harm inflicted by a fellow inmate who allegedly sexually assaulted
Plaintiff and thereafter repeatedly physically and verbally threatened him. Plaintiff
alleges that he reported these incidents to Defendants, or some of them, to no avail.
Plaintiff further alleges that he filed multiple grievances to which the Defendants failed to
adequately respond.
In his twenty-four page R & R, the Magistrate Judge carefully reviewed the factual
record and recommended that Defendants' motion to dismiss (Doc. 17) be granted, with
leave for Plaintiff to file an amended complaint. He concluded that Defendants were
immune from suit under the Eleventh Amendment to the United States Constitution for
any claims brought against them in their official capacities. He further found that
Plaintiff had failed to exhaust his administrative remedies as required by the Prison
Litigation Reform Act of 1995. The court agrees with these conclusions and orders
dismissal ofPlaintiffs claim on that basis, with leave to file an amended complaint. In
addition, the court agrees with the Magistrate Judge that Defendants' motion to dismiss
for failure to allege a physical injury should be denied. The court need not and does not
adopt the remainder of the Magistrate Judge's conclusions.
The court GRANTS IN PART and DENIES IN PART Defendants' motion to
dismiss (Doc. 17). Plaintiffhas already filed an amended complaint on January 9, 2013
in response to the R & R's recommendation that leave to amend be granted.
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SO ORDERED.
Dated at Rutland, in the District of Vermont, this
~y of February, 2013.
C stma Reiss, Chief Judge
United States District Court
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