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B Sere “LO.
UNITED STATES DISTRICT COURT Sy
WESTERN DISTRICT OF NEW YORK Coes
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GEE GIBSON,
Plaintiff,
20-CV-1455 (JLS) (MJR)
V.
ANDREW M. CUOMO, et. al.,
Defendants.
DECISION AND ORDER
Pro se Plaintiff Gee Gibson filed this action under 42. U.S.C. § 1988 on
October 27, 2020. See generally Dkt. 1. This Court previously dismissed several of
Gibson’s claims. Dkts. 5, 6, 83, but allowed the following claims to continue:
(1) Eighth Amendment claims, Dkt. 10, §/{[ 12-18; (2) First Amendment claim, rd.
19-21; (8) excessive force, failure to intervene, and failure to treat injury claims,
id. 22-24; and (4) due process claims, td. 4/{] 25-32. Defendants Annucci,
Balloni, Cochran, Graff, and McKenzie (““Annucci defendants”) filed a motion to
dismiss. Dkt. 61. Defendants Brown, Hunter, Maddox, McGuire, Obertean,
Pequeen, Price, Seay, and Szablicki (“Maddox defendants”) filed a motion to dismiss
and motion to sever. Dkt. 67.
Presently before the Court is Judge Roemen’s Report and Recommendation
(“R&R”) addressing the pending motions. See Dkt. 86. As set forth in the R&R,
Judge Roemer recommended this Court grant Maddox's and the Annucci
defendants’ motions to dismiss and deny the Maddox defendants’ motion for
severance as moot. Jd. at 1, 19.
Upon Gibson’s request, the deadline for filing objections to Judge Romev’s
R&R was extended to September 29, 2023, and again to October 13, 2023. See Dkts.
88, 90. No party filed objections.
A district court may accept, reject, or modify the findings or recommendations
of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(8). A district
court must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which a party objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(3). But neither 28 U.S.C. § 686 nor Federal Rule of Civil Procedure 72
requires a district court to review the recommendation of a magistrate judge to
which objections are not raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless
has reviewed Judge Roemer’s R&R and the relevant record. In the absence of
objections, the Court accepts Judge Roemer’s recommendations to grant Maddox’s
and the Annucci defendants’ motions to dismiss and denies the Maddox defendants’
motion to sever as moot. The Court also accepts Judge Roemer’s recommendation
that Gibson’s remaining claims based on excessive force, failure to protect, medical
indifference, and violations of due process should continue to discovery.
For the reasons stated above and in the R&R, the Annucci defendants’ motion
to dismiss (Dkt. 61) is GRANTED; Defendant Maddox's motion to dismiss (Dkt. 67)
is GRANTED; and the Maddox defendants’ motion to sever (Dkt. 67) is DENIED as
moot. The case is referred back to Judge Roemer for further proceedings consistent
with the referral order of June 14, 2022. Dkt. 29.
SO ORDERED.
Dated: January 22, 2024
Buffalo, New York ae (
alto ss
JOHN SINATRA, JR.
UNI'D “D STATES DISTRICT JUDGE