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Nix v. Doe, 9:16-CV-828 (FJS/TWD). (2017)

Court: District Court, N.D. New York Number: infdco20170822b93 Visitors: 15
Filed: Aug. 21, 2017
Latest Update: Aug. 21, 2017
Summary: ORDER FREDERICK J. SCULLIN, Jr. , District Judge . Plaintiff commenced this civil rights action against Defendants pursuant to 42 U.S.C. 1983. Defendants Correction Officer Norton and Correction Officer Lester, the only two Defendants whom Plaintiff has served with the second amended complaint, moved to dismiss some of Plaintiff's claims against them for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 32. Plaintiff opposed that mo
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ORDER

Plaintiff commenced this civil rights action against Defendants pursuant to 42 U.S.C. § 1983. Defendants Correction Officer Norton and Correction Officer Lester, the only two Defendants whom Plaintiff has served with the second amended complaint, moved to dismiss some of Plaintiff's claims against them for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 32. Plaintiff opposed that motion. See Dkt. No. 40. This Court referred that motion to Magistrate Judge Dancks for a report and recommendation. See Dkt. No. 33. In a Report and Recommendation dated August 4, 2017, Magistrate Judge Dancks recommended that the Court grant the motion. See, generally, Dkt. No. 43. Neither Plaintiff nor Defendants filed objections to that recommendation.

When a party does not object to a magistrate judge's report-recommendation, the court reviews that report-recommendation for clear error or manifest injustice. See Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted). After reviewing a magistrate judge's recommendations, the district court may accept, reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The Court has reviewed Magistrate Judge Dancks' August 4, 2017 Report and Recommendation for clear error and manifest injustice; and, finding none, the Court hereby

ORDERS that Magistrate Judge Dancks' August 4, 2017 Report and Recommendation, see Dkt. No. 43, is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Defendant Norton and Lester's motion, see Dkt. No. 32, is GRANTED; and the Court further

ORDERS that Plaintiff's claims against Defendants Norton and Lester alleging that they failed to intervene and protect Plaintiff from inmate Sanders' assault are DISMISSED without prejudice; and the Court further

ORDERS that Plaintiff's claims against Defendants Norton and Lester alleging that they were deliberately indifferent to Plaintiff's medical needs are DISMISSED without prejudice; and the Court further

ORDERS that Plaintiff's claims against Defendants Norton and Lester alleging verbal harassment and threats are DISMISSED with prejudice; and the Court further

ORDERS that the following claims against all Defendants are DISMISSED with prejudice sua sponte: (1) § 1983 official capacity claims; (2) assault and battery claims; (3) claims under the Fifth and Sixth Amendments; and (4) claims under 18 U.S.C. § 241; and the Court further

ORDERS that the following claims against all Defendants are DISMISSED without prejudice sua sponte: (1) claims under the Fourth Amendment; (2) conspiracy claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1985; and (3) claims under 42 U.S.C. § 1981; and the Court further

ORDERS that this matter is referred to Magistrate Judge Dancks for all further pretrial matters.

IT IS SO ORDERED.

Source:  Leagle

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