Crichlow v. Fischer et al, No. 9:2017cv00194 - Document 239 (N.D.N.Y 2017)

Court Description: DECISION AND ORDER: ORDERED that the Court accepts and adopts Magistrate Judge Dancks's Report-Recommendation and Order (Dkt. No. 233 ) in its entirety. Defendants' motion for summary judgment in lieu of an answer (Dkt. No. 177 ) is GRANTED, and the action is DISMISSED against all remaining Defendants, including those who have not been specifically identified and/or served. Further, Plaintiff's motion for substitution of a party (Dkt. No. 231 ) is DENIED AS MOOT. Plaint iff's motion for a preliminary injunction (Dkt. No. 238 ) is DENIED WITHOUT PREJUDICE to being asserted in a new action complaining about the conduct underlying the motion. The Clerk of the Court may enter final judgment and close the file in this matter. Signed by Senior Judge Thomas J. McAvoy on 12/18/17. {order served via regular mail on plaintiff}(nas, )

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Crichlow v. Fischer et al Doc. 239 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ KEVIN DAMION CRICHLOW, Plaintiff, v. 9:17-cv-00194 (TJM/TWD) BRIAN FISCHER, et al., Defendants. _________________________________________ THOMAS J. McAVOY, Senior United States District Judge DECISION & ORDER I. INTRODUCTION This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Thérèse Wiley Dancks, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In her Septem ber 5, 2017 Report-Recommendation and Order (Dkt. No. 233), Magistrate Judge Dancks recommends that Defendants’ motion for summary judgment in lieu of an answer (Dkt. No. 177) be granted, and that Plaintiff’s motion for substitution of a party (Dkt. No. 231) be denied as moot. Plaintiff filed objections to the Report-Recommendation and Order. See Obj., Dkt. No. 236. On November 29, 2017, Plaintiff filed a motion for a preliminary injunction. Dkt. No. 238. 1 Dockets.Justia.com II. DISCUSSION a. Objections to Report-Recommendation and Order When objections to a magistrate judge’s report and recommendation are lodged, the district 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); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The Court must make a de novo determination to the extent that a party makes specific objections to a magistrate’s findings.). After reviewing the report and recommendation, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b). Having considered Plaintiff’s objections and having completed a de novo review of the issues raised by the objections, the Court has determined to accept Magistrate Judge Dancks’s recommendations for the reasons stated in her thorough report. Accordingly, Defendants’ motion for summary judgment in lieu of an answer (Dkt. No. 177) is granted, and Plaintiff’s motion for substitution of a party (Dkt. No. 231) is denied as moot. b. Preliminary Injunction Plaintiff’s motion for a preliminary injunction complains of conduct subsequent to the allegations underlying the claims in this action, see Dkt. No. 238-1, pp. 1-3 (complaining about his medical treatment in October 2017), p. 5 (claiming that he was retaliated against because he filed “grievances ... with DOCS Office of Special Investigations since 20162017"), and appears to assert new claims for retaliation and denial of medical care based 2 on this subsequent conduct. See id., pp. 3-5. Plaintif f cannot amend the Amended Complaint by bringing a motion for a preliminary injunction complaining about subsequent conduct. Accordingly, the motion for a preliminary injunction is denied without prejudice to being asserted in a new action complaining about the conduct underlying the motion. IV. CONCLUSION For the reasons discussed above, the Court accepts and adopts Magistrate Judge Dancks’s Report-Recommendation and Order (Dkt. No. 233) in its entirety. Defendants’ motion for summary judgment in lieu of an answer (Dkt. No. 177) is GRANTED, and the action is DISMISSED against all remaining Defendants, including those who have not been specifically identified1 and/or served. Further, Plaintiff’s motion for substitution of a party (Dkt. No. 231) is DENIED AS MOOT. Plaintiff’s motion for a preliminary injunction (Dkt. No. 238) is DENIED WITHOUT PREJUDICE to being asserted in a new action complaining about the conduct underlying the motion. The Clerk of the Court may enter final judgment and close the file in this matter. IT IS SO ORDERED. Dated: December 18, 2017 1 Plaintiff names several “Doe” defendants, as well as defendants identified only by position or badge number (such as defendant “B-3 A Officer S.D.U.”). 3

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