Flemming v. Fischer et al, No. 9:2013cv00816 - Document 34 (N.D.N.Y 2014)
Court Description: DECISION and ORDER: ORDERED that 31 Report and Recommendation is accepted and adopted in all respects. ORDERED that 23 Motion to Dismiss for Failure to State a Claim is granted. Defendants Duvall, Smith, Adam, Barr, Finnozzo, and Wilson ar e DISMISSED from this action. Plaintiff is granted leave to amend his claim that defendant Wilson purposefully withheld permission for him to use a walking cane. If he wishes to do so, he must file an amended complaint within thirty (30) days of t he date of this Decision and Order complying with the guidelines set forth in the Report-Recommendation and setting out any wrongful conduct by defendant Wilson. In the event plaintiff does not file an amended complaint within thirty (30) days of the date of this Decision and Order setting forth a claim against defendant Wilson, the complaint will be DISMISSED without further order. Signed by Judge David N. Hurd on 9/29/14. {order served certified mail/return receipt on plaintiff}(nas)
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Flemming v. Fischer et al Doc. 34 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------WOODROW FLEMMING, Plaintiff, No. 9:13-CV-0816 (DNH/RFT) -v- NANCY SMITH, Nurse Administrator, Upstate Correctional Facility; PAUL M. DUVALL, 11 Block Sgt., Upstate Correctional Facility; EDMUND BARR, C.O., Upstate Correctional Facility; JOHN J. FINNOZZO; GERALDINE WILSON, Nurse, Upstate Correctional Facility; and RICHARD ADAM, Med. Doctor, Upstate Correctional Facility, Defendants. -------------------------------APPEARANCES: OF COUNSEL: WOODROW FLEMMING Plaintiff, Pro Se P.O. Box 146 New York, NY 10039 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendant The Capitol Albany, NY 12224 ADRIENNE J. KERWIN, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff Woodrow Flemming brought this civil rights action pursuant to 42 U.S.C. § 1983. On August 20, 2014, the Honorable Randolph F. Treece, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion to dismiss be Dockets.Justia.com granted and that defendants Duvall, Smith, Adam, Barr, and Finnozzo be dismissed from this action. Magistrate Judge Treece also recommended that plaintiff be granted leave to amend his claim that defendant Wilson purposefully withheld permission for him to use a walking cane. Plaintiff timely filed objections to the Report-Recommendation. Based upon a de novo review of the portions of the Report-Recommendation to which plaintiff objected, the Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. § 636(b)(1). Therefore, it is ORDERED that 1. Defendants' motion to dismiss is GRANTED; 2. Defendants Duvall, Smith, Adam, Barr, Finnozzo, and Wilson are DISMISSED from this action; 3. Plaintiff is granted leave to amend his claim that defendant Wilson purposefully withheld permission for him to use a walking cane. If he wishes to do so, he must file an amended complaint within thirty (30) days of the date of this Decision and Order complying with the guidelines set forth in the Report-Recommendation and setting out any wrongful conduct by defendant Wilson; 4. In the event plaintiff does not file an amended complaint within thirty (30) days of the date of this Decision and Order setting forth a claim against defendant Wilson, the complaint will be DISMISSED without further order; and 5. The Clerk is directed to serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules and close the file. IT IS SO ORDERED. -2- Dated: September 29, 2014 Utica, New York. -3-
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