Walter v. Fischer

Full title: LAWRENCE J. WALTER, Plaintiff, v. BRIAN FISCHER, Commissioner, Department…

Court: United States District Court, N.D. New York

Date published: Sep 28, 2009

9:08-CV-908 (NAM/DRH) (N.D.N.Y. Sep. 28, 2009)

Opinion

9:08-CV-908 (NAM/DRH).

September 28, 2009

LAWRENCE J. WALTER, 01-B-2188, Mid-State Correctional Facility, Marcy, New York, Plaintiff, Pro Se.

HON. ANDREW M. CUOMO, Attorney General for the State of New York, MICHAEL G. McCARTIN, Esq., Assistant Attorney General, The Capitol, Albany, New York, Attorney for Defendants.

MEMORANDUM-DECISION AND ORDER

NORMAN MORDUE, District Judge

Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action under 42 U.S.C. § 1983. Defendants move (Dkt. No. 19) to dismiss the action in its entirety. Plaintiff moves (Dkt. No. 24) for a preliminary injunction and temporary restraining order.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), the Court referred defendants' dismissal motion to United States Magistrate Judge David R. Homer. Magistrate Judge Homer has issued a Report and Recommendation (Dkt. No. 28) recommending that defendants' motion to dismiss be granted and that the complaint be dismissed in its entirety as to all claims and all defendants. Plaintiff has submitted an objection (Dkt. No. 31). In view of plaintiff's objections, pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review of the entire matter.

Upon de novo review, the Court adopts and accepts Magistrate Judge Homer's Report and Recommendation in all respects. The complaint is dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. In light of this determination, plaintiff's motion for a preliminary injunction and temporary restraining order is denied. In addition, Magistrate Judge Homer properly denied plaintiff's request (Dkt. No. 25) for in forma pauperis status.

It is therefore

ORDERED that the Report and Recommendation of United States Magistrate Judge David R. Homer (Dkt. No. 28) is adopted and accepted in all respects; and it is further

ORDERED that defendants' motion (Dkt. No. 19) is granted, and the complaint is dismissed on the merits under Fed.R.Civ.P. 12(b)(6); and it is further

ORDERED that plaintiff's motion (Dkt. No. 24) for a preliminary injunction and temporary restraining order is denied.

IT IS SO ORDERED.