Frederick J. Scullin
APPEARANCES
ERIC PARTAK
Attica Correctional Facility
Plaintiff pro se
OF COUNSEL
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Attorneys for Defendants
JAMES SEAMAN, AAG
SCULLIN, Senior Judge
ORDER
Currently before the Court are Magistrate Judge Baxter's September 12, 2011 Order and Report-Recommendation, see Dkt. No. 81, and Plaintiff's objections thereto, see Dkt. No. 83.
Plaintiff Eric Partak, a New York State prison inmate, commenced this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants. In his second amended complaint, Plaintiff alleged that, while he was incarcerated at Greene Correctional Facility, Defendants (1) denied him due process in connection with a disciplinary hearing in which he was found guilty of drug possession, (2) retaliated against him for complaining about one of the named Defendants to a member of the Inspector General's Office, and (3) violated his Eighth Amendment right to be free from cruel and unusual punishment by housing him in filthy cell conditions. See generally Dkt. No. 65.
On June 24, 2011, Defendants filed a motion to dismiss Plaintiff's second amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 73. Plaintiff opposed that motion, cross-moved to amend his second amended complaint, and submitted a proposed third amended complaint. See Dkt. Nos. 74, 79. Defendants filed a reply to Plaintiff's opposition to their motion to dismiss and opposed Plaintiff's motion to amend. See Dkt. Nos. 75, 80. Plaintiff filed a surreply to Defendants' reply in connection with the motion to dismiss. See Dkt. No. 78.
In an Order and Report-Recommendation dated September 12, 2011, Magistrate Judge Baxter recommended that this Court grant Defendants' motion to dismiss in its entirety and deny Plaintiff's motion to amend. See Dkt. No. 81. Plaintiff objected to Magistrate Judge Baxter's recommendation. See Dkt. No. 83.
Where a party makes specific objections to portions of a magistrate judge's report and recommendation, the court conducts a de novo review of those recommendations. See Trombley v. Oneill, No. 8:11-CV-0569, 2011 WL 5881781, *2 (N.D.N.Y. Nov. 23, 2011) (citing Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C)). Where a party does not object or makes only conclusory objections, however, the court reviews the report and recommendation for "clear error" only. See Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 1794741, *1 (N.D.N.Y. June 23, 2009) (quotation omitted). After conducting the appropriate review, a district court may decide to accept, reject, or modify those recommendations in whole or in part. See Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. Sept. 29, 2009) (quoting 28 U.S.C. § 636(b)(1)(C)).
The Court has conducted a de novo review of Magistrate Judge Baxter's Order and Report-Recommendation in light of Plaintiff's specific objections. Having completed its review, the Court hereby
ORDERS that Magistrate Judge Baxter's September 12, 2011 Order and Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss is GRANTED in its entirety; and the Court further
ORDERS that Plaintiff's cross-motion to amend his complaint is DENIED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 27, 2012
Syracuse, New York
___________
Frederick J. Scullin, Jr.
Senior United States District Court Judge