Opinion
9:12-CV-1605 (FJS/RFT)
2013-10-18
DYLAN GIBBONS, Plaintiff, v. S. PRINDLE, Correctional Officer, Eastern Correctional Facility, Defendant.
DYLAN GIBBONS 02-A-2053 Five Points Correctional Facility Romulus, New York 14541 Plaintiff pro se OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL The Capitol Albany, New York 12224 Attorneys for Defendant OF COUNSEL GREGORY J. RODRIGUEZ, AAG
APPEARANCES
DYLAN GIBBONS
02-A-2053
Five Points Correctional Facility
Romulus, New York 14541
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant
OF COUNSEL
GREGORY J. RODRIGUEZ, AAG
SCULLIN, Senior Judge
ORDER
Currently before the Court is Magistrate Judge Treece's September 18, 2013 Report-Recommendation and Order, in which he recommended that this Court grant Defendant's motion for partial dismissal as it pertains to Plaintiff's Eighth Amendment claim for sexual assault and any state tort claims. See Dkt. No. 18 at 8. Magistrate Judge Treece further recommended that the Court direct Defendant Prindle to file an answer regarding Plaintiff's surviving Eighth Amendment claim of excessive force. See id. The parties did not file any objections to these recommendations.
When a party does not object to a magistrate judge's report-recommendation, the court reviews that report-recommendation for clear error or manifest injustice. See Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted). After conducting this review, "the Court may 'accept, reject, or modify in whole or in part, the . . . recommendations made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)(1)(C)).
The Court has reviewed Magistrate Judge Treece's September 18, 2013 Report-Recommendation and Order for clear error and manifest injustice; and, finding none, the Court hereby
ORDERS that Magistrate Judge Treece's September 18, 2013 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant's motion for partial dismissal is GRANTED; and Plaintiff's Eighth amendment claim for sexual assault and any state tort claims are DISMISSED, and the Court further
ORDERS that Defendant Prindle shall file an answer to Plaintiff's Eighth Amendment claim of excessive force within ten (10) days of the date of this Order; and the Court further
ORDERS that this matter is referred to Magistrate Judge Treece for all further pretrial matters; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: October 18, 2013
Syracuse, New York
______________
Frederick J. Scullin, Jr.
Senior United States District Court Judge