Phelan v. Quinn et al, No. 9:2011cv00314 - Document 45 (N.D.N.Y 2012)
Court Description: DECISION and ORDER: The 43 Report and Recommendation is accepted in whole. ORDERED that 36 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part: Plaintiff's failure to protect claims against defendants Q uinn, Manell, Torres, and Washer are DISMISSED; Plaintiff's retaliation claims against defendants McDonald, Warrington, Swan, and Gebo REMAIN; The surviving claims and defendants be consolidated into a final, third amended complaint, which s hould contain all relevant facts regarding these claims as alleged in plaintiff's opposition papers to defendants' present motion; and Upon the filing of the third amended complaint, the pleadings shall be returned to Magistrate Judge Hummel for further review to ensure compliance. Signed by Judge David N. Hurd on 10/23/12. {order served via regular mail on plaintiff(nas )
Download PDF
<![CDATA[
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------KENNETH J. PHELAN, Plaintiff, 9:11-CV-314 (DNH/DRH) -v- QUINN, Correctional Officer, Great Meadow Correctional Facility; SWAN, Correctional Officer, Great Meadow Correctional Facility; McDONALD, Correctional Officer, Great Meadow Correctional Facility; WARRINGTON, Correctional Officer, Great Meadow Correctional Facility; WASHER, Sergeant, Great Meadow Correctional Facility; MINAL,1 Psychologist, Great Meadow Correctional Facility; TORRES, Counselor, Great Meadow Correctional Facility; OWENS, Sergeant, Great Meadow Correctional Facility; GEBO, Correctional Officer, Great Meadow Correctional Facility; FULLER, Correctional Officer, Great Meadow Correctional Facility; KISER, Correctional Officer, Great Meadow Correctional Facility; and MURPHY, Correctional Officer, Great Meadow Correctional Facility, Defendants.2 -------------------------------APPEARANCES: OF COUNSEL: KENNETH J. PHELAN Plaintiff Pro Se 09-A-1183 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541 1 In Phelan's second amended complaint, "Minal" is spelled "Manell." 2 By Decision and Order dated June 19, 2012, Phelan's claim against Nurse Ted was dismissed. HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendants The Capitol Albany, NY 12224 ADRIENNE J. KERWIN, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Plaintiff brought this action pursuant to 42 U.S.C. ยง 1983. On September 20, 2012, the Honorable Christian F. Hummel, United States Magistrate Judge, advised, by ReportRecommendation, that defendants' motions to dismiss be denied as to the retaliation claims against defendants McDonald, Warrington, Swan, and Gebo, and granted as to the failure to protect claims against defendants Quinn, Manell, Torres, and Washer. Magistrate Judge Hummel also recommended that the surviving claims and defendants be consolidated into a final, third amended complaint, which should contain all relevant facts regarding these claims as alleged in Phelan's opposition papers to defendants' present motion and further, that upon the filing of the third amended complaint, the pleadings be returned to Magistrate Judge Hummel for further review to ensure compliance. Plaintiff timely filed objections to the Report-Recommendation. Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. 636(b)(1). Therefore it is ORDERED that 1. Defendants' motion to dismiss is GRANTED in part and DENIED in part; -2- 2. Plaintiff's failure to protect claims against defendants Quinn, Manell, Torres, and Washer are DISMISSED; 3. Plaintiff's retaliation claims against defendants McDonald, Warrington, Swan, and Gebo REMAIN; 4. The surviving claims and defendants be consolidated into a final, third amended complaint, which should contain all relevant facts regarding these claims as alleged in plaintiff's opposition papers to defendants' present motion; and 5. Upon the filing of the third amended complaint, the pleadings shall be returned to Magistrate Judge Hummel for further review to ensure compliance. IT IS SO ORDERED. Dated: October 23, 2012 Utica, New York. -3-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
