Thomas v. Kinderman et al, No. 9:2017cv00425 - Document 32 (N.D.N.Y 2018)
Court Description: DECISION AND ORDER: ORDERED that 26 REPORT AND RECOMMENDATION is ACCEPTED IN WHOLE. ORDERED that Defendants' 18 motion for summary judgement is GRANTED as to defendant Janochowski and the complaint against him DISMISSED with prejudice. Defendants' 18 motion for summary judgement is DENIED as to defendant Kinderman. Plaintiff's 31 request to withdraw his remaining claim against defendant Kinderman is GRANTED and the complaint against defendant Kinderman is DISMISSED without prejudice. Signed by Judge David N. Hurd on 3/22/18. {order served via regular mail on plaintiff}(nas, )
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Thomas v. Kinderman et al Doc. 32 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------WILLIAM D. THOMAS, Plaintiff, -v- 9:17-CV-425 (DNH/TWD) KINDERMAN, Deputy Superintendent of Programs/Hearing Officer, Marcy Correctional Facility and JANOCHOWSKI, Correctional Officer, Marcy Correctional Facility, Defendants. -------------------------------APPEARANCES: OF COUNSEL: WILLIAM D. THOMAS Plaintiff pro se 13-A-2123 Auburn Correctional Facility P.O. Box 618 Auburn, NY 13021 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendants 615 Erie Boulevard West Suite 102 Syracuse, NY 13204 TIMOTHY P. MULVEY, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff William D. Thomas brought this civil rights action pursuant to 42 U.S.C. § 1983. On December 4, 2017, the Honorable Therese Wiley Dancks, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion for summary Dockets.Justia.com judgment be granted in part and denied in part. Specif ically, Magistrate Judge Dancks recommended that summary judgment be granted as to defendant Janochowski and denied as to defendant Kinderman. No objections to the Report-Recommendation were filed. However, plaintiff later filed a letter requesting to "dismiss my active cases, and not hold it against me." ECF No. 31. Based upon a careful review of the Report-Recommendation, the ReportRecommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). Plaintiff's complaint will be dismissed as against defendant Janochowski with prejudice for the reasons explained in the Report-Recommendation, leaving only plaintiff's due process claim against defendant Kinderman. Per plaintiff's request to voluntarily withdraw his case, his due process claim against defendant Kinderman will be dismissed without prejudice at this time subject to refiling. Therefore, it is ORDERED that 1. Defendants' motion for summary judgement is GRANTED as to defendant Janochowski and the complaint against him DISMISSED with prejudice; 2. Defendants' motion for summary judgement is DENIED as to defendant Kinderman; and 3. Plaintiff's request to withdraw his remaining claim against defendant Kinderman is GRANTED and the complaint against defendant Kinderman is DISMISSED without prejudice. The Clerk is directed to close the file. IT IS SO ORDERED. -2- Dated: March 22, 2018 Utica, New York. -3-
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