Nuphlo Entertainment, Inc. et al v. Miller et al

Filing 104

ORDER: The Court hereby ORDERS that Magistrate Judge Peebles' # 100 Report, Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein. The Court further ORDERS that Plaintiff's claims against Defendant Dick Mille r, in his official and individual capacities are DISMISSED in their entirety; thereby leaving only Russell Southard, Jr., in his official capacity as Acting Mayor of the City of Oneonta; Timothy West, Jr.; Jacob Lakomski; and Foothills Performing Arts Center, Inc. as Defendants in this case. Signed by Senior Judge Frederick J. Scullin, Jr. on 4/20/2015. [Copy served upon pro se plaintiff via regular mail.] (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
TIMOTHY A. BARON,
Plaintiff,
v.

3:13-CV-153
(FJS/DEP)

DICK MILLER, in his official capacity as
city Mayor of the City of Oneonta, in his
official capacity as President of the Board
of Foothills Performing Center, Inc., of
Oneonta, New York and in his individual
capacity; TIMOTHY WEST, JR., New
York State Trooper, in his individual
capacity; JACOB LAKOMSKI, New
York State Trooper, in his individual
capacity; RUSSELL JR. SOUTHARD,
in his official capacity as Acting Mayor
of the City of Oneonta; and FOOTHILLS
PERFORMING ARTS CENTER, INC.,
Defendants.
________________________________________________
APPEARANCES

OF COUNSEL

TIMOTHY A. BARON
Oneonta, New York 13820
Plaintiff pro se
LEMIRE JOHNSON, LLC
2534 Route 9
P.O. Box 2485
Malta, New York 12020
Attorneys for Defendants Miller
and Southard

GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
TIMOTHY J. HIGGINS, ESQ.
BRADLEY J. STEVENS, ESQ.

OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants West and
Lakomski

CHRISTOPHER W. HALL, AAG

CORRIGAN, MCCOY & BUSH PLLC
220 Columbia Turnpike
Rensselaer, New York 12144
Attorneys for Defendant Foothills
Performing Arts Center, Inc.

SCOTT W. BUSH, ESQ.

SCULLIN, Senior Judge
ORDER
On February 10, 2013, Plaintiff commenced this action against the Mayor of the City of
Oneonta, the operator of a local performing arts center, and two New York State troopers claiming
that they had deprived him of his rights under various federal and international provisions. As
Defendants, Plaintiff named Foothills Performing Arts Center, Inc.; Timothy West, Jr. and Jacob
Lakomski, both of whom are New York State Troopers; and Dick Miller, in his individual capacity
and in his official capacity as the Mayor of the City of Oneonta and as President of the Board of
Directors of Defendant Foothills Performing Arts Center, Inc.
On November 14, 2014, counsel for Defendant Miller filed a notice advising the Court that
Defendant Miller had died on October 26, 2014. See Dkt. No. 89. Plaintiff has not made any effort
to substitute Defendant Miller's successor or representative as a defendant in his place.
On March 24, 2015, Magistrate Judge Peebles issued a Report, Recommendation and Order,
in which he, among other things, ordered that Russell Southard, Jr. be substituted as a Defendant in
this action, in place of Defendant Dick Miller, in his official capacity as the Acting Mayor of the

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City of Oneonta and that the Clerk of the Court adjust the Court's records accordingly. See Dkt. No.
100 at 6.
In addition, Magistrate Judge Peebles recommended that the Court dismiss Plaintiff's claims
against Defendant Dick Miller, in his official capacity as President of the Board of Directors of
Foothills Performing Arts Center, Inc. and in his individual capacity, thereby leaving Russell
Southard, Jr. in his official capacity as Acting Mayor of the City of Oneonta; Timothy West, Jr.;
Jacob Lakomski; and Foothills Performing Arts Center, Inc. as Defendants in this action. See id.
The parties filed no objections to these recommendations.
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 conducting this review, "the Court may 'accept, reject, or modify, in whole or in
part, the recommendations made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)(1)(C)).
The Court has reviewed Magistrate Judge Peebles' March 24, 2015 Report,
Recommendation and Order for clear error and manifest injustice; and, finding none, the Court
hereby
ORDERS that Magistrate Judge Peebles' March 24, 2015 Report, Recommendation and
Order, see Dkt. No. 100, is ACCEPTED in its entirety for the reasons stated therein; and the Court
further
ORDERS that Plaintiff's claims against Defendant Dick Miller, in his official and individual
capacities are DISMISSED in their entirety; thereby leaving only Russell Southard, Jr., in his
official capacity as Acting Mayor of the City of Oneonta; Timothy West, Jr.; Jacob Lakomski; and
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Foothills Performing Arts Center, Inc. as Defendants in this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: April 20, 2015
Syracuse, New York

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