Martinko v. NH Department of Corrections et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David M. Martinko
v.
NH Department of Corrections, et al.
Case No. 22-cv-238-LM
O R D E R
No objection having been filed, I herewith approve the Endorsed Report and
Recommendation of Magistrate Judge Andrea K. Johnstone dated September 5,
2023 (“R&R”). For the reasons explained therein in the R&R, the motion to dismiss
(doc. no. 46) is denied without prejudice. As the R&R explains, defendants’ motion
to dismiss references matters not contained in the Complaint. To consider those
matters, the court would first need to convert the motion to one for summary
judgment. At the time of the R&R, defendants had not yet filed an Answer to the
Complaint. Thus, the court denied the motion to dismiss without prejudice to
defendants’ right to file an Answer and then a motion for summary judgment. This
means that the denial of the motion to dismiss does not affect plaintiff’s claims, but
instead allows the defendants to file an Answer. On September 19, 2023,
defendants filed their Answer to the Complaint (doc. no. 54), and then on September
21, 2023, filed a motion for summary judgment (doc. no. 55). On or before October
23, 2023, plaintiff shall file his response to the motion for summary judgment.
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“‘[O]nly those issues fairly raised by the objections to the magistrate's report
are subject to review in the district court and those not preserved by such objection
are precluded on appeal.’” School Union No. 37 v. United Nat'l Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010) (quoting Keating v. Secretary of Health & Human Servs.,
848 F.2d 271, 275 (1st Cir.1988)); see also United States v. Valencia-Copete, 792
F.2d 4, 6 (1st Cir. 1986) (after proper notice, failure to file a specific objection to
magistrate's report will waive the right to appeal).
SO ORDERED.
____________________________
Landya B. McCafferty
United States District Judge
Date: September 22, 2023
cc: David M. Martinko, pro se
Counsel of Record
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