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holding that the plaintiff “was not confined at the time the suit was filed in 2009, he was released on parole, thus the statutory language of § 1997e(e) is inapplicable.”
Summary of this case from Logan v. GrahamOpinion
9:09-CV-489 (NAM/DRH).
March 2, 2010
CESAR ANDUJAR, 08-A-6417, Washington Correctional Facility, Comstock, New York, Plaintiff Pro Se.
HON. ANDREW M. CUOMO, Attorney General for the State of New York, JAMES SEAMAN, Esq., Assistant Attorney General, The Capitol, Albany, New York, Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights under the Fourteenth Amendment. Defendants moved to dismiss the complaint (Dkt. No. 16) and plaintiff moved (Dkt. No. 19) to amend his complaint.
United States Magistrate Judge David R. Homer issued a Report and Recommendation and Order (Dkt. No. 21) in which he (1) recommended that defendants' motion to dismiss be granted, and (2) denied plaintiff's motion to file an amended complaint. Plaintiff objected to the recommendation that the case be dismissed; appealed the denial of his motion to amend the complaint; and requested appointment of counsel (Dkt. Nos. 22, 23).
The Court first considers the recommendation that the motion to dismiss be granted. Where, as here, a party interposes only general objections to a report and recommendation, the Court reviews for clear error or manifest injustice. See Davis v. Chapple, 2010 WL 145298, *2 (N.D.N.Y. Jan. 8, 2010), Brown v. Peters, 1997 WL 599355, *2-* 3 (N.D.N.Y.), aff'd without op., 175 F.3d 1007 (2d Cir. 1999). The Court finds no clear error or manifest injustice and no basis to reject the Report and Recommendation.
Turning to consider Magistrate Judge Homer's order denying leave to serve an amended complaint, the Court notes that such an order is generally viewed as a non-dispositive order reviewable under the "clearly erroneous or contrary to law" standard, see, e.g., Sanrio Co., Ltd. v. Epic Trading, Inc., 2005 WL 1705746 (E.D.N.Y. 2005); Lyondell-Citgo Refining v. Petroleos De Venezuela, 2005 WL 883485 at *3 (S.D.N.Y. 2005); see also Kilcullen v. New York State Dep't of Transp., 55 Fed. Appx. 583, 584-85 (2d Cir. 2003); in any event, even if reviewed de novo, the order is correct.
Plaintiff's request for appointment of counsel is denied as moot.
It is therefore
ORDERED that United States Magistrate Judge David R. Homer's Report and Recommendation and Order (Dkt. No. 21) is accepted; and it is further
ORDERED that defendants' motion (Dkt. No. 16) is granted and the action is dismissed; and it is further
ORDERED that plaintiff's appeal (Dkt. No. 23) is denied and Magistrate Judge Homer's Order denying leave to amend the complaint (Dkt. No. 21) is affirmed; and it is further
ORDERED that plaintiff's request (Dkt. No. 22) for appointment of counsel is denied as moot.
IT IS SO ORDERED.