King v. McIntyer et al, No. 9:2011cv01457 - Document 83 (N.D.N.Y 2014)

Court Description: DECISION AND ORDER: ORDERED, that the 80 Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). ORDERED, that Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6 ) (Dkt. No. 58 ) is GRANTED in part and DENIED in part. ORDERED, that Plaintiff's official capacity claims for damages against all defendants are DISMISSED. ORDERED, that Plaintiff's claim for injunctive relief in the form of stopping h arassment at the Coxsackie Correctional Facility is DISMISSED. ORDERED, that Plaintiff's claims against defendant Doty are sua sponte DISMISSED without prejudice for failure to serve that defendant. ORDERED, that the remaining defendants C.O . McIntyer; Lt. McDermott; C.O. Stevens; Sgt. Young; C.O. Kane; C.O. Hessle; C.O. Catlin; Dept. C. Miller; Comm. Brian Fischer; and Sup. Martuscello are directed to respond to the complaint as provided for in the Federal Rules of Civil Procedure. Signed by Judge David N. Hurd on 2/20/14. (served on plaintiff by regular mail) (alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------JAMEL KING, Plaintiff, No. 9:11-CV-1457 -v- C.O. MCINTYER; LT. MCDERMOTT; C.O. STEVENS; SGT. YOUNG; C.O. KANE; C.O. HESSLE; C.O. DOTY; C.O. CATLIN; DEPT. C. MILLER; COMM. BRIAN FISCHER; and SUP. MARTUSCELLO, Defendants. -------------------------------APPEARANCES: OF COUNSEL: JAMEL KING, 01-A-4949 Plaintiff pro se Elmira Correctional Facility P.O. Box 500 Elmira, NY 14902 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendants The Capitol Albany, NY 12224 DOUGLAS J. GOGLIA, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff Jamel King brought this action pursuant to 42 U.S.C. § 1983. On December 31, 2013, the Honorable Thérèse Wiley Dancks, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted in part and denied in part. No objections to the Report-Recommendation were filed.1 Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). Therefore, it is ORDERED that 1. Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED in part and DENIED in part; 2. Plaintiff's official capacity claims for damages against all defendants are DISMISSED; 3. Plaintiff's claim for injunctive relief in the form of stopping harassment at the Coxsackie Correctional Facility is DISMISSED; 4. Plaintiff's claims against defendant Doty are sua sponte DISMISSED without prejudice for failure to serve that defendant; and 5. The remaining defendants C.O. McIntyer; Lt. McDermott; C.O. Stevens; Sgt. Young; C.O. Kane; C.O. Hessle; C.O. Catlin; Dept. C. Miller; Comm. Brian Fischer; and Sup. Martuscello are directed to respond to the complaint as provided for in the Federal Rules of Civil Procedure. The Clerk is directed to serve a copy of this Decision and Order upon plaintiff in 1 Plaintiff requested an extension of time to file objections to the Report-Recommendation and was granted until February 7, 2014 to do so. -2- accordance with the Local Rules. IT IS SO ORDERED. Dated: February 20, 2014 Utica, New York. -3-

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