Summary
holding chest and lower back pain, constipation, lack of energy, diarrhea, staph infections, blurry vision, and painful lumps on the arms were not sufficiently serious to establish the objective prong of the Eighth Amendment analysis
Summary of this case from James v. KaskiwOpinion
9:03-CV-1402 (LEK/DRH).
March 30, 2007
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on February 21, 2007 by the Honorable David R. Homer, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 85). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Defendants, which were filed on February 28, 2007, Defts' Objections (Dkt. No. 86), and objections by Plaintiff, which, after an extension of time granted by this Court, were filed on March 21, 2007. Plntf's Objections (Dkt. No. 88).
It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved for the reasons stated therein. Accordingly, it is hereby
ORDERED, that the Report-Recommendation (Dkt. No. 85) is APPROVED and ADOPTED in its ENTIRETY; and it is further
ORDERED, that Defendants' Motion for summary judgment (Dkt. No. 79) is GRANTED; and it is further
ORDERED, that this action is DISMISSED IN ITS ENTIRETY as to all named defendants and all claims; and it is further
ORDERED, that Plaintiff is GRANTED THIRTY (30) DAYS from the date of this Court's Order to file an AMENDED COMPLAINT alleging excessive force and failure to intervene in violation of the Eighth Amendment; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.