Summary
stating that since inmate's conviction on charges in misbehavior report had never been overturned, "there is no sufficient allegation that the misbehavior report was false," and that inmate's claims that correction officer had issued report in retaliation for inmate's grievance were "wholly conclusory with no plausible nexus between the grievance and the misbehavior report"
Summary of this case from Boyd v. DoeOpinion
9:08-CV-717 (FJS/DRH).
November 25, 2009
LAMONT WHITE, 01-A-4083, Attica Correctional Facility, Attica, New York, Plaintiff pro se, OFFICE OF THE NEW YORK, STATE ATTORNEY GENERAL, Albany, New York, Attorneys for Defendants, ROGER W. KINSEY, AAG.
ORDER
Currently before the Court is Magistrate Judge Homer's October 23, 2009 Report-Recommendation and Order to which the parties have filed no objections. Having reviewed the Report-Recommendation and Order and finding that the same is neither clearly erroneous nor contrary to law, the Court hereby
ORDERS that Magistrate Judge Homer's October 23, 2009 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motions to dismiss are GRANTED with respect to all claims against Defendants Bergenstock, Senderson, D. Smith, Walsh, Tishenor, M. Smith, Lumbard, Woods, Graham, Roy and Fisher in their individual and official capacities; and the Court further
ORDERS that Defendants' motions to dismiss are GRANTED with respect to all claims against Defendants Sturgen, T. Clarke, and C. Clarke in their official capacities; and the Court further
ORDERS that the complaint is DISMISSED WITHOUT PREJUDICE with respect to all claims against Defendant Danson in accordance with Rule 4(m) of the Federal Rules of Civil Procedure and Local Rule 4.1(b); and the Court further
ORDERS that Defendants' motions to dismiss are DENIED with respect to Plaintiff's Eighth Amendment and pendent state-law claims against Defendant Sturgen in his/her individual capacity regarding the removal of Plaintiff's neck brace; and the Court further
ORDERS that this matter is referred to Magistrate Judge Homer for all further pretrial matters.
The Court notes that, in addition to Plaintiff's Eighth Amendment and pendent state-law claims against Defendant Sturgen related to the removal of Plaintiff's neck brace, Plaintiff's Eighth Amendment excessive force and pendent state-law claims against Defendants C. Clarke and T. Clarke remain because Defendants did not move to dismiss those claims.