Martinko v. NH Department of Corrections et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David M. Martinko
v.
NH Department of Corrections
Case No. 22-cv-238-LM
ORDER
No objection having been filed, I herewith approve the Report and
Recommendation of Magistrate Judge Andrea K. Johnstone dated April 3,
2023. For the reasons explained therein, Martinko’s Eighth Amendment
claims in this case (Claims 3, 5, 7(a), 7(b)), are dismissed.
To the extent Martinko’s RLUIPA claims are asserted against any
defendant in his or her individual capacity and to the extent that
they seek damages against any defendant in his or her individual or
official capacity, those claims are dismissed.
Defendants S. Pasciuto, Paula Mattis, and Abbey Simon, are
dropped as parties, as the Complaint and its addenda fail to state a
claim upon which relief might be granted against them.
Martinko’s Laaman claims and the state constitutional claims
(Claims 8 and 9), are dismissed without prejudice to Mr. Martinko’s
ability to litigate those state law claims in state court.
“‘[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
Case 1:22-cv-00238-LM-AJ Document 44 Filed 05/09/23 Page 1 of 2

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).
____________________________
Landya B. McCafferty
Chief Judge
Date: May 9, 2023
cc: David M. Martinko, pro se
Counsel of Record
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