Cabassa v. Smith et al, No. 9:2006cv00852 - Document 91 (N.D.N.Y 2013)

Court Description: DECISION AND ORDER: ORDERED that 89 Report and Recommendation is accepted in part and denied in part. ORDERED that 78 Defendant Wurzel's motion for judgment on the pleadings is DENIED as to plaintiff's failure to timely serve him und er Federal Rule of Civil Procedure 4(m); Defendant Wurzel' motion for judgment on the pleadings is GRANTED with leave to replead as follows: Plaintiff is granted leave to file an amended complaint only as to his Eighth Amendment medical indiff erence claims against defendant Wurzel: (1) based upon the alleged delay in or about April 2005 to provide him with a contact lens for his right eye, and (2) based upon the allegation that defendant Wurzel along with two other individuals made plaint iff wait in October 2005 for a replacement pair of contact lenses; the amended complaint shall be filed on or before October 18, 2013. Failure to file an amended complaint will result in a judgment dismissing the complaint without further order. Signed by Judge David N. Hurd on 9/25/13. (nas)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------SAMUEL CABASSA, Plaintiff, -v- 9:06-CV-0852 RICHARD WURZEL, Defendant. -------------------------------APPEARANCES: OF COUNSEL: COVINGTON & BURLING LLP Attorneys for Plaintiff 620 Eighth Avenue New York, NY 10018 PHILLIP A. IRWIN, ESQ. DOUGLAS S. CURRAN, ESQ. HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendant The Capitol Albany, NY 12224 C. HARRIS DAGUE, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Plaintiff brought this civil rights action pursuant to 42 U.S.C. § 1983. On August 28, 2013, the Honorable David E. Peebles, United States Magistrate Judge, advised, by ReportRecommendation, that defendant's motion for judgment on the pleadings be granted with leave to replead only with respect to plaintiff's Eighth Amendment medical indifference claim against defendant Wurzel based upon the alleged delay in or about April 2005 to provide him with a contact lens for his right eye. Plaintiff timely filed objections to the ReportRecommendation. The defendant did not respond. Based upon a de novo review of the portions of the Report-Recommendation to which plaintiff objected, the Report-Recommendation is accepted in part and rejected in part. See 28 U.S.C. § 636(b)(1). Therefore, it is ORDERED that 1. Defendant Wurzel's motion for judgment on the pleadings is DENIED as to plaintiff's failure to timely serve him under Federal Rule of Civil Procedure 4(m); 2. Defendant Wurzel's motion for judgment on the pleadings is GRANTED with leave to replead as follows; 3. Plaintiff is granted leave to file an amended complaint only as to his Eighth Amendment medical indifference claims against defendant Wurzel: (1) based upon the alleged delay in or about April 2005 to provide him with a contact lens for his right eye, and (2) based upon the allegation that defendant Wurzel along with two other individuals made plaintiff wait in October 2005 for a replacement pair of contact lenses; 4. The amended complaint shall be filed on or before October 18, 2013; and 5. Failure to file an amended complaint will result in a judgment dismissing the complaint without further order. -2- IT IS SO ORDERED. Dated: September 25, 2013 Utica, New York. -3-

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