McMaster v. LaBarge et al, No. 9:2015cv00578 - Document 46 (N.D.N.Y 2016)

Court Description: DECISION AND ORDER: ORDERED that 43 Report and Recommendation is accepted in whole. ORDERED that 27 Motion to Dismiss is DENIED. Signed by Judge David N. Hurd on 9/22/16. {order served via regular mail on plaintiff}(nas)

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McMaster v. LaBarge et al Doc. 46 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------KENNETH McMASTER, Plaintiff, -v- 9:15-CV-0578 (DNH/CFH) L.W. LABARGE, S.D. LAMARE, E. SMITH, K. ELLSWORTH, J.G. TATRO, M.C. TOMPKINS, C.S. ROWE, Defendants. -------------------------------APPEARANCES: OF COUNSEL: KENNETH McMASTER Plaintiff, Pro Se 08-B-1832 Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorneys for Defendant James Thomsen The Capitol Albany, NY 12224 RACHEL MAMAN KISH, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff Kenneth McMaster brought this civil rights action pursuant to 42 U.S.C. § 1983. On June 30, 2016, the Honorable Christian F. Hummel, United States Magistrate Judge, advised by Report-Recommendation that defendants’ motion to dismiss pursuant to Federal Rule Dockets.Justia.com of Civil Procedure 12(b)(6) be denied. See ECF No. 43. Defendants have filed timely objections. See ECF No. 44. Plaintiff has filed a response to such objections. See ECF No. 45. 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 pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 27) is DENIED; and 2. The Clerk serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules. IT IS SO ORDERED. Dated: September 22, 2016 Utica, New York -2-

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