Cosby v. Russell et al, No. 9:2010cv00595 - Document 37 (N.D.N.Y 2012)
Court Description: DECISION AND ORDER: The Court adopts the 36 Report and Recommendation. ORDERED that Defendants' motion to dismiss (Dkt. No. 26 ) is GRANTED in part and DENIED in part. The motion is granted inasmuch as: (a) Plaintiff's claims agains t Defendants Russell and Thomas are dismissed with leave to re-plead; (b) Plaintiff's causes of action asserting claims arising out of state and federal penal law are dismissed with prejudice; and (c) Plaintiff's claim brought under 42 U. S.C. § 1985(3) is dismissed with leave to re-plead. Should Plaintiff elect to re-plead the claims against Defendants Russell and Thomas and the claim under 42 U.S.C. § 1985(3), he must file an amended pleading within thirty days of the dat e of this Decision & Order. An amended pleading must be in conformity with the parameters explained by Magistrate Judge Peebles at page 35 of the Report and Recommendation. The motion is DENIED in all other respects. Signed by Senior Judge Thomas J. McAvoy on 3/5/12. {order served via regular mail on all non-ecf parties}(nas)
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ JOHN COSBY, Plaintiff, 9:10-CV-0595 (TJM/DEP) v. COLLEEN RUSSELL; ROBERTS J. LENNOX; DARRELL D. PILON; SCOTT J. BISHOP; DOUGLAS J. WILSON; KYLE J. MULVERHILL; MAYO; J. HAYES; E. PRITCHARD; E. RICH; and W. KLINE, 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. David E. Peebles, 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 Peebles s February 8, 2012 Report and Recommendation have been filed, and the time to do so has expired. Furthermore, after examining the record, this Court has determined that the Report and Recommendation is not subject to attack for plain error or manifest injustice. 1 II. CONCLUSION The Court ADOPTS the Report and Recommendation [dkt. # 36] for the reasons stated therein. Therefore, it is hereby ORDERED that Defendants motion to dismiss (Dkt. No. 26) is GRANTED in part and DENIED in part. The motion is granted inasmuch as: (a) Plaintiff s claims against Defendants Russell and Thomas are dismissed with leave to re-plead; (b) Plaintiff s causes of action asserting claims arising out of state and federal penal law are dismissed with prejudice; and (c) Plaintiff s claim brought under 42 U.S.C. § 1985(3) is dismissed with leave to re-plead. Should Plaintiff elect to re-plead the claims against Defendants Russell and Thomas and the claim under 42 U.S.C. § 1985(3), he must file an amended pleading within thirty days of the date of this Decision & Order. An amended pleading must be in conformity with the parameters explained by Magistrate Judge Peebles at page 35 of the Report and Recommendation. The motion is DENIED in all other respects. IT IS SO ORDERED Dated: March 5, 2012 2
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