Cagle v. Gravlin et al, No. 9:2009cv00648 - Document 33 (N.D.N.Y 2010)
Court Description: DECISION AND ORDER: ORDERED that the Report-Recommendation filed by Magistrate Judge George H. Lowe on April 29, 2010 is, accepted in its entirety; ORDERED that Defendants' motion to dismiss for failure to state a claim is granted in part and de nied in part; ORDERED that Defendants Gravlin, Demarse, Lira, Trombly, Otis and Belleinier shall file and serve an answer to Plaintiff's conditions of confinement claim regarding his exposure to feces in accordance with the Federal Rules of Civil Procedure. Signed by Senior Judge Frederick J. Scullin, Jr on 5/25/10. {order served on plaintiff by regular mail} (mnc)
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK MICHAEL CAGLE, Plaintiff, v. 9:09-CV-0648 (FJS/GHL) GRAVLIN, DEMARSE, VAN ORGRUM, BONDS, LIRA, TROMBLY, OTIS, BELLINGER, Defendants. APPEARANCES: OF COUNSEL: MICHAEL CAGLE Plaintiff, pro se 09-CV-0648 Sullivan Correctional Facility P.O. Box 116 Fallsburg, NY 12733 HON. ANDREW M. CUOMO Attorney General of the State of New York Attorney for Defendants The Capitol Albany, New York 12224 Krista A. Rock, Esq. FREDERICK J. SCULLIN, S. D. J. DECISION AND ORDER Presently before the Court is Magistrate Judge George H. Lowe s April 29, 2010 ReportRecommendation in which he recommends the defendants motion to dismiss for failure to state a claim be GRANTED IN PART AND DENIED IN PART. The Court, having reviewed the Report-Recommendation and the entire file in this matter and no objections to said ReportRecommendation having been filed, hereby ORDERS that the Report-Recommendation filed by Magistrate Judge George H. Lowe on April 29, 2010 is, for the reasons stated therein, accepted in it entirety; and the Court further ORDERS that Defendants motion to dismiss for failure to state a claim is GRANTED IN PART AND DENIED IN PART; and the Court further ORDERS that the following claims are dismissed with prejudice: (1) all claims against Defendants in their official capacities; (2) all claims against Defendants Van Orgrum and Bonds; (3) the claim that Defendants retaliated against Plaintiff; and (4) any claim that Defendants verbally harassed Plaintiff; and the Court further ORDERS that the following claims are dismissed without prejudice: (1) the claim that Defendants violated Plaintiff s right of access to the courts; and (2) the claim that Defendants subjected Plaintiff to unconstitutional conditions of confinement by denying him recreation; and the Court further ORDERS that Defendants Gravlin, Demarse, Lira, Trombly, Otis and Belleinier shall file and serve an answer to Plaintiff s conditions of confinement claim regarding his exposure to feces in accordance with the Federal Rules of Civil Procedure. IT IS SO ORDERED. Dated: May 25 , 2010 Syracuse, New York
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