Carney v. Hogan et al, No. 9:2008cv01280 - Document 5 (N.D.N.Y 2010)

Court Description: DECISION AND ORDER: ORDERED, that the Report and Recommendation (Dkt. No. 21 in the Lead Case) is accepted and adopted in all respects. ORDERED, that defendants' Motion to Dismiss (Dkt. No. 15 in the Lead Case) is GRANTED in part and DENIED in p art. ORDERED, that all of plaintiff's claims with the exception of his First Amendment cause of action in the Lead Case (08-cv-1251) seeking injunctive relief against the defendants in their official capacity are DISMISSED. ORDERED, that the Mem ber Case (9:09-cv-1280) is DISMISSED, the Clerk shall enter judgment dismissing the Member Case. ORDERED, that the Lead Case (08-cv-1251) shall be returned to the Magistrate Judge for handling of futher proceedings in the plaintiff's First Amendment cause of action seeking injunctive relief against defendants Michael F. Hogan and Donald Sawyer in their official capacities. Signed by Judge David N. Hurd on 6/15/10. (Order served on plaintiff by regular mail) (alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ........................................................................... DONALD CARNEY, Action No. 1 Plaintiff, -v- 9:08-CV-1251 MICHAEL F. HOGAN, Commissioner, NYS Office of Mental Health; and DONALD SAWYER, Executive Director, CNYPC, Defendants. ............................................................................. DONALD CARNEY, LEAD CASE Action No. 2 Plaintiff, -v- 9:08-CV-1280 MICHAEL F. HOGAN; TERRI MAXYMILLIAN; VALERIE COLASANTE; and DONALD SAWYER, MEMBER CASE Defendants. ------------------------------------------------------------------APPEARANCES: OF COUNSEL: DONALD CARNEY Plaintiff, Pro Se CNY Psychiatric Center 9005 Old River Road PO Box 300 Marcy, New York 13403 HON. ANDREW M. CUOMO Office of Attorney General State of New York Department of Law The Capitol Albany, New York 12224 DAVID N. HURD United States District Judge AARON M. BALDWIN, ESQ. Assistant Attorney General DECISION and ORDER Plaintiff, Donald Carney, brought these civil rights actions in November 2008, pursuant to 42 U.S.C. § 1983. The cases were consolidated in December 2008. By Report-Recommendation dated March 30, 2010, the Honorable Andrew T. Baxter, United States Magistrate Judge, recommended that defendants motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 15) be granted in part and denied in part as follows: all of plaintiff s claims with the exception of his First Amendment cause of action seeking injunctive relief against the defendants in their official capacity be dismissed. The defendants have filed objections to the Report-Recommendation. Based upon a de novo review of the Report-Recommendation and the entire file, including those portions to which the defendants have objected, the ReportRecommendation is accepted and adopted in all respects. See 28 U.S.C. 636(b)(1). Accordingly, it is ORDERED that defendants motion to dismiss is GRANTED in part and DENIED in part as follows: (a) All of plaintiff s claims with the exception of his First Amendment cause of action in the Lead Case (08-cv-1251) seeking injunctive relief against the defendants in their official capacity are DISMISSED; (b) The Member Case (9:09-CV-1280) is DISMISSED; (c) The Clerk shall enter judgment dismissing the Member Case (08-cv-1280); and (d) The Lead Case (08-CV-1251) shall be returned to the Magistrate Judge for handling of further proceedings in the plaintiff s First Amendment cause of action seeking injunctive relief against defendants Michael F. Hogan and Donald Sawyer in their official 2 capacities. IT IS SO ORDERED. Dated: June 15, 2010 Utica, New York. 3

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