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noting that the plaintiff was "requir[ed]" to seek an appeal to the superintendent, even though he never received a response to his grievance, which was never assigned a grievance number
Summary of this case from Little v. Mun. Corp.Opinion
9:03-CV-1128.
September 26, 2006
GABRIEL MIDALGO, Plaintiff, Pro Se.
HON. ELIOT SPITZER, Attorney General for the State of New York SENTA B. SIUDA, ESQ., Assistant Attorney General Syracuse, New York, Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
Presently before this Court is defendants' motion (Dkt. No. 105) for summary judgment dismissing the complaint in this civil rights action pursuant to 42 U.S.C. § 1983. In his amended complaint (Dkt. No. 8), plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges deliberate indifference towards his health and safety in violation of the Eighth Amendment, interference with mail and access to the law library in violation of the First Amendment, inadequate visitation, and harassment.
Defendants' motion was referred to United States Magistrate Judge Randolph F. Treece for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). In a thorough Report and Recommendation (Dkt. No. 110), Magistrate Judge Treece recommends that the Court grant the motion for summary judgment. Plaintiff objects (Dkt. No. 112). After the Court extended time for plaintiff to file additional objections to the Report-Recommendation (Dkt. No. 113), plaintiff filed a second objection (Dkt. No. 114).
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review of those parts of a magistrate judge's Report and Recommendation to which a party specifically objects. Where only general objections are filed, the Court reviews for clear error. See Brown v. Peters, 1997 WL 599355, *2-* 3 (N.D.N.Y.), aff'd without op., 175 F.3d 1007 (2d Cir. 1999). Failure to object to any portion of a Report and Recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993).
Plaintiff's objections include a variety of allegations. A number of them revisit issues which are the subject of the Report and Recommendation. They do not, however, demonstrate the existence of material questions of fact which would warrant denial of summary judgment. Other allegations concern events allegedly occurring subsequent to the filing of the amended complaint herein; these are not properly the subject of this action. Upon thorough de novo review, the Court accepts and adopts the Report and Recommendation.
It is therefore
ORDERED that the Report and Recommendation (Dkt. No. 110) is accepted and adopted in its entirety; and it is further
ORDERED that defendants' motion for summary judgment (Dkt. No. 105) is granted and the action is dismissed.
IT IS SO ORDERED.