Martin v. Oey et al, No. 9:2016cv00717 - Document 37 (N.D.N.Y 2017)

Court Description: DECISION AND ORDER: The Plaintiff's objections to the Report-Recommendation, dkt. # 36 , are hereby OVERRULED. The Report-Recommendation, dkt. # 35 , is hereby ACCEPTED. According: 1. the Plaintiff's Second Amended Complaint, dkt. # [3 4], is accepted for filing as the operative pleading in this action; 2. Defendant Wyckoff is DIRECTED to respond to Plaintiff's Eighth Amendment excessive force claim; 3. Plaintiff's Fourteenth Amendment due process claim is hereby DISMI SSED WITH PREJUDICE against Defendants Oey, Venettozzi, and Annuuci; 4. Plaintiff's claim based on a false misbehavior report against Defendants Wyckoff, Mitchell, Wentzel, and Oey is hereby DISMISSED WITH PREJUDICE; and 5. Plaintiff's Eighth Amendment conditions of confinement and medical indifference claims are hereby DISMISSED WITHOUT PREJUDICE. Signed by Senior Judge Thomas J. McAvoy on 12/27/17. (served on plaintiff by regular mail) (alh, )

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Martin v. Oey et al Doc. 37 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK NICHOLAS MARTIN, Plaintiff, v. 9:16-cv-717 (TJM/TWD) R. OEY, et al., Defendants. Thomas J. McAvoy, SR. U.S.D.J. DECISION and ORDER The Court referred this 42 U.S.C. § 1983 action, which alleges that prison guards and officials violated Plaintiff’s constitutional rights, to the Hon. Thérèse Wiley Dancks, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72.3(d) of the Local Rules of the Northern District of New York. The Report-Recommendation, dated November 28, 2017, recommends that the Court dismiss all but one of the claims in Plaintiff’s Second Amended Complaint. Plaintiff filed objections to the Report-Recommendation. When objections to a magistrate judge’s Report-Recommendation are lodged, the Court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1). After such a review, the Court may “accept, reject, or modify, in whole or in part, the findings or 1 Dockets.Justia.com recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.” Id. Having reviewed the record de novo and having considered the issues raised in the Plaintiff’s objections, this Court has determined to accept and adopt the recommendations of Magistrate Judge Dancks for the reasons stated in the Report-Recommendation. Accordingly: The Plaintiff’s objections to the Report-Recommendation, dkt. # 36, are hereby OVERRULED. The Report-Recommendation, dkt. # 35, is hereby ACCEPTED. According: 1. the Plaintiff’s Second Amended Complaint, dkt. # 34, is accepted for filing as the operative pleading in this action; 2. Defendant Wyckoff is DIRECTED to respond to Plaintiff’s Eighth Amendment excessive force claim; 3. Plaintiff’s Fourteenth Amendment due process claim is hereby DISMISSED WITH PREJUDICE against Defendants Oey, Venettozzi, and Annuuci; 4. Plaintiff’s claim based on a false misbehavior report against Defendants Wyckoff, Mitchell, Wentzel, and Oey is hereby DISMISSED WITH PREJUDICE; and 5. Plaintiff’s Eighth Amendment conditions of confinement and medical indifference claims are hereby DISMISSED WITHOUT PREJUDICE. IT IS SO ORDERED 2 Dated:December 27, 2017 3

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