Diaz v. Pelo et al, No. 9:2015cv00776 - Document 24 (N.D.N.Y 2017)

Court Description: DECISION AND ORDER: ORDERED that 22 Report and Recommendationis accepted and adopted in all respects. ORDERED that 17 Motion to Dismiss is granted in part and denied in part; Plaintiff's conspiracy and equal protection claims are DISM ISSED as against all defendants; and Defendants are directed to file an answer to the Complaint within twenty (20) days of the date of this Decision and Order. Signed by Judge David N. Hurd on 4/17/17. {order served via regular mail on plaintiff}(nas, )
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Diaz v. Pelo et al Doc. 24 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------FREDERICK DIAZ, Plaintiff, -v- 9:15-cv-776 (DNH/DJS) STEPHANIE PELO, Grievance Supervisor, Great Meadow Correctional Facility; C. FRASER, Sergeant, Great Meadow Correctional Facility; KENNETH MCKEIGHAN, Industry Superintendent, Great Meadow Correctional Facility; RODNEY EASTMAN, Deputy Superintendent of Security, Great Meadow Correctional Facility; CHRISTOPHER MILLER, Superintendent, Great Meadow Correctional Facility; and RACHEL A. YOUNG, Acting Director of the Office of Guidance & Counseling, Defendants. -------------------------------APPEARANCES: FREDERICK DIAZ 86-B-2129 Plaintiff pro se Elmira Correctional Facility P.O. Box 500 Elmira, NY 14902 HON. ERIC T. SCHNEIDERMAN New York State Attorney General - Albany Attorney for Defendants The Capitol Albany, NY 12224 NICOLE E. HAIMSON, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge Dockets.Justia.com DECISION and ORDER Pro se plaintiff Frederick Diaz brought this civil rights action pursuant to 42 U.S.C. § 1983. On March 24, 2017, the Honorable Daniel J. Stew art, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion to dismiss be granted in part and denied in part. 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 in part and DENIED in part; 2. Plaintiff's conspiracy and equal protection claims are DISMISSED as against all defendants; 3. Defendants are directed to file an answer to the Complaint within twenty (20) days of the date of this Decision and Order; and 4. The Clerk is directed to serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules. IT IS SO ORDERED. Dated: April 17, 2017 Utica, New York. 2 The following claims remain: (1) that defendants Pelo and Young violated plaintiff's due process rights when they deducted $1,660.20 from his inmate account; (2) that defendants Pelo and Young retaliated against plaintiff when they deducted $1,660.20 from his inmate account; (3) that defendants Fraser and Eastman retaliated against plaintiff by issuing him a false IPC report; (4) that defendant McKeighan violated plaintiff's due process rights during the IPC and IGRC impeachment hearings; (5) that defendant McKeighan retaliated against plaintiff by affirming his IPC placement; (6) that defendants Eastman and Miller retaliated against plaintiff by upholding his IPC placement; and (7) that defendant Pelo retaliated against plaintiff by issuing him a false misbehavior report. 3