McFadden v. Herman et al, No. 9:2009cv01415 - Document 55 (N.D.N.Y 2013)

Court Description: DECISION & ORDER: The Court ADOPTS the Report-Recommendation [dkt. # 54 ] for the reasons stated therein. Therefore, Defendants' motion to dismiss [Dkt. # 53 ] is GRANTED IN PART and DENIED IN PART. All claims brought against Defendants Herma n and Finton in their official capacities are DISMISSED. Any claim alleging the failure to intervene brought against Defendant Herman in his personal capacity is DISMISSED WITHOUT PREJUDICE. The motion is DENIED as to Plaintiff's claim of excessive force brought against Defendant Finton in his personal capacity. Signed by Senior Judge Thomas J. McAvoy on 2/15/2013. (ptm) (Copy served on plaintiff by regular mail)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ BRANDON MCFADDEN, Plaintiff, vs. 9:09-CV-1415 SCOTT HERMAN, et al., Defendants. ________________________________________ THOMAS J. McAVOY, Senior United States District Judge DECISION & ORDER I. INTRODUCTION This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). No objections to Magistrate Judge Baxter s Report-Recommendation [dkt. # 54] have been filed, and the time to do so has expired. Furthermore, after examining the record, this Court has determined that the Report-Recommendation is not subject to attack for plain error or manifest injustice. II. CONCLUSION Accordingly, the Court ADOPTS the Report-Recommendation [dkt. # 54] for the reasons stated therein. Therefore, Defendants motion to dismiss [Dkt. # 53] is GRANTED IN PART and DENIED IN PART. All claims brought against Defendants Herman and 1 Finton in their official capacities are DISMISSED. Any claim alleging the failure to intervene brought against Defendant Herman in his personal capacity is DISMISSED WITHOUT PREJUDICE. The motion is DENIED as to Plaintiff s claim of excessive force brought against Defendant Finton in his personal capacity. IT IS SO ORDERED. Dated: February 15, 2013 2

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