Opinion
9:11-CV-247
02-13-2012
MATTHEW D. BOOKER, Plaintiff, v. D. ROCK, Superintendent of Upstate Correctional Facility, and MR. MARENELLI, Psychologist, Upstate Correctional Facility, Defendants.
MATTHEW BOOKER, 09-A-5397 Plaintiff pro se Elmira Correctional Facility OF COUNSEL: HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendant The Capitol ADELE M. TAYLOR-SCOTT Ass't Attorney General
(DNH/GHL)
APPEARANCES: MATTHEW BOOKER, 09-A-5397
Plaintiff pro se
Elmira Correctional Facility
OF COUNSEL: HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendant
The Capitol
ADELE M. TAYLOR-SCOTT
Ass't Attorney General
DAVID N. HURD
United States District Judge
DECISION and ORDER
Plaintiff brought this civil rights action pursuant to 42 U.S.C. § 1983. On January 31, 2011, the Honorable George H. Lowe, United States Magistrate Judge, advised, by Report-Recommendation, that defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted in part and denied in part. Defendants timely filed objections to the Report-Recommendation.
Based upon a de novo review, the Report-Recommendation is accepted in whole. See 28 U.S.C. 636(b)(1).
Therefore it is
ORDERED that
1. Defendants' motion to dismiss for failure to state a claim, Dkt. No. 17, is GRANTED in part and DENIED in part;
2. Plaintiff's claims against defendant Rock are DISMISSED, with leave to amend;
3. Plaintiff's claims against DOCCS are DISMISSED, with prejudice; and
4. Defendant Marenelli is directed to answer the Eighth Amendment claim.
IT IS SO ORDERED.
___________
United States District Judge
Dated: February 13, 2012
Utica, New York.