Wilmer v. Torian , 980 F. Supp. 106 ( 1997 )

980 F. Supp. 106 (1997)

Michael WILMER, Plaintiff,
v.
J.A. TORIAN, Dr.; Karen Corsell; Szostak, Superintendent; James Campbell, Albany County Sheriff, Defendants.

No. CIV.A.96-CV-1269(RSP/DNH).

United States District Court, N.D. New York.

October 14, 1997.

Michael Wilmer, Albany, NY, pro se.

Thulliez, Ford, Gold & Connolly, LLP, Albany, NY, for Defendants; Karen A. Butler, of counsel.

ORDER

POOLER, District Judge.

The above matter comes to me following a Report-Recommendation by Magistrate Judge David N. Hurd, duly filed on the 29th day of August, 1997. Following ten days from the service thereof, the Clerk has sent me the entire file, including any and all objections filed by the parties herein.

Plaintiff brought this action pursuant to 42 U.S.C. § 1983, alleging that defendants violated his Eighth Amendment rights by refusing medical treatment for an unspecified problem with plaintiff's leg while he was incarcerated at the Albany County Correctional Facility. Compl. Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on November 22, 1996, arguing that plaintiff's claim was one for, at most, medical malpractice, which was not cognizable under Section 1983. Dkt. No. 11. By letter dated January 28, 1997, plaintiff requested additional time in which to respond to defendants' motion. Dkt. No. 16. Plaintiff requested an extension until after his release date, March 21, 1997, so that he could obtain counsel to assist him in preparing his response. Magistrate Judge Hurd granted plaintiff's request and extended his time to respond to defendants' motion until May 1, 1997. Plaintiff failed to file a response. On August 29, 1997, Magistrate Judge Hurd recommended that I dismiss plaintiff's complaint. The copy of the report-recommendation sent to plaintiff at his address of record was returned as undeliverable.

After careful review of all of the papers herein, including the Magistrate Judge's Report-Recommendation, and no objections having been submitted thereto, it is

ORDERED, that:

1. The Report-Recommendation is hereby approved;

2. The defendants' motion is granted and the action dismissed for the reasons set forth in the magistrate judge's Report; and

3. The Clerk shall serve a copy of this Order on the parties by regular mail.

IT IS SO ORDERED.

REPORT-RECOMMENDATION

HURD, United States Magistrate Judge.

This matter was referred to the undersigned for Report and Recommendation by the Honorable Rosemary S. Pooler, United States District Judge, pursuant to the Local Rules of the Northern District of New York.

Plaintiff commenced this § 1983 action alleging that his civil rights were violated because he was denied medial treatment. Plaintiff seeks damages in the total amount of Two-hundred Fifty-thousand Dollars ($250,000.00).

The defendants have filed a motion to dismiss because plaintiff's complaint fails to state a cause of action pursuant to 42 U.S.C. § 1983, and pursuant to Fed.R.Civ.P. Rule 12(b)(6) and 12(b)(2). The plaintiff requested, and was granted, an extension to May 1, 1997 in which to respond to defendants' motion. The plaintiff has not filed any papers in opposition to the motion. "Failure to file any papers as required by this rule shall, unless for good cause shown, be deemed by the court as consent to the granting or denial of the motion, as the case may be." Rules of U.S.Dist.Ct. for Northern Dist. of N.Y., L.R. 7.1(b)(3).

NOW, upon careful consideration of the notice of motion, affidavit of Karen A. Butler, Esq., sworn to on November 21, 1996, with exhibits attached, and the memorandum of law in support of defendants' motion thereof; and there being no opposition to the motion, it is

RECOMMENDED that the motion be granted and the complaint be dismissed in its entirety as against all defendants.

Pursuant to 28 U.S.C. § 636(b)(l), the parties have ten days within which to file written objections to the foregoing report. Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992). Such objections shall be filed with the Clerk of the Court with a copy to be mailed to the chambers of the undersigned at 10 Broad Street, Utica, New York 13501. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(l); Fed.R.Civ.P. 72, 6(a), 6(e); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir.1989); and it is

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation, by regular mail, upon the parties to this action.

Aug. 29, 1997.