Summary
finding that physician's decision to medically clear the plaintiff for "mess hall duty" even though "other prison officials, both at [the same facility as the physician] and elsewhere, at various times have agreed that plaintiff could not meet the demands of mess hall duty" did not, by itself, "constitute and establish the existence of a medical indifference claim"
Summary of this case from Frank v. N.Y. Dep't of Corr. & Cmty. SupervisionOpinion
9:09-CV-643.
September 28, 2010
WESELY WILLIAMS, Plaintiff, Pro Se, Coxsackie Correctional Facility, Coxsackie, NY.
ADRIENNE J. KERWIN, ESQ., Asst. Attorney General, HON. ANDREW M. CUOMO, Attorney General of the State of New York, Attorney for Defendants, Department of Law, The Capitol, Albany, New York.
DECISION and ORDER
Plaintiff, Wesely Williams, commenced this civil rights action in June 2009, pursuant to 42 U.S.C. § 1983. By Report-Recommendation dated September 3, 2010, the Honorable David E. Peebles, United States Magistrate Judge, recommended that defendants' motion to dismiss (Docket No. 14) be granted in part, and that all claims set forth in plaintiff's complaint, with the exception of his cause of action against defendant Bailey and Mardon alleging deprivation of equal protection, be dismissed with leave to replead within thirty days of any order adopting the report and recommendation. The plaintiff has filed objections to the report-recommendation.
Based upon a de novo review of the entire file, including the portions of the Report-Recommendation to which plaintiff has objected, and the recommendations of Magistrate Judge Peebles, the Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. 636(b)(1).
Accordingly, it is
ORDERED that
1. Defendants' motion to dismiss (Docket No. 14) is GRANTED in part;
2. All claims set forth in plaintiff's complaint, with the exception of his cause of action against defendant Mary Bailey and Mrs. Mardon alleging deprivation of equal protection, are DISMISSED with leave to replead within thirty days of this order which adopts the report and recommendation.
2. The Clerk is directed to return the file to the Magistrate Judge for any further pretrial procedures.
IT IS SO ORDERED.
Dated: September 27, 2010
Utica, New York.