Smith v. Wildermuth et al, No. 9:2011cv00241 - Document 68 (N.D.N.Y 2015)
Court Description: DECISION & ORDER: ORDERED, that the Court ADOPTS the Report-Recommendation and Order (dkt. # 66 ) for the reasons stated therein. ORDERED that Defendants respond to (1) the excessive force claim against Defendants Wildermuth, Ensel, Slater, Hal e, Morris, and Noethe; (2) the conspiracy claim against Defendants Wildermuth, Ensel, Slater, Hale, Morris, and Noethe; (3) the First Amendment claim against Defendant Wildermuth; (4) the Eighth Amendment failure-to- intervene claim against Defendan ts Bailey, Chewens, and Saez; (5) the Eighth Amendment conditions of confinement claim against Defendant Martuscello; and (6) the Eighth Amendment failure-to-protect claim against Defendants Rock and Evans. ORDERED, that the state law claims and the RLUIPA claim are DISMISSED without leave to amend. ORDERED that the equal protection claim against Defendant Martuscello is DISMISSED with leave to amend. Signed by Senior Judge Thomas J. McAvoy on 1/29/15. (alh, )
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Smith v. Wildermuth et al Doc. 68 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ AUREL SMITH, Plaintiff, 9:11-CV-0241 (TJM/TWD) v. M. WILDERMUTH, 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. Thérèse Wiley Dancks, 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 Dancks’ Report-Recommendation and Order [dkt. # 66] have been filed, and the time to do so has expired. II. DISCUSSION After examining the record, this Court has determined that the Report- Recommendation and Order is not subject to attack f or plain error or manifest injustice. III. CONCLUSION Accordingly, the Court ADOPTS the Report-Recommendation and Order [dkt. # 66] 1 Dockets.Justia.com for the reasons stated therein. Therefore, it is hereby ORDERED that Defendants respond to (1) the excessive force claim against Defendants Wildermuth, Ensel, Slater, Hale, Morris, and Noethe; (2) the conspiracy claim against Defendants Wildermuth, Ensel, Slater, Hale, Morris, and Noethe; (3) the First Amendment claim against Defendant Wildermuth; (4) the Eighth Amendment failure-to- intervene claim against Defendants Bailey, Chewens, and Saez; (5) the Eighth Amendment conditions of confinement claim against Defendant Martuscello; and (6) the Eighth Amendment failure-to-protect claim against Defendants Rock and Evans. And it is further ORDERED that the state law claims and the RLUIPA claim are DISMISSED without leave to amend; and it is further ORDERED that the equal protection claim against Defendant Martuscello is DISMISSED with leave to amend. Dated:January 29, 2015 2
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