Newman v. Hoyt et al

Filing 9

DECISION & ORDER: Adopting the # 6 Report and Recommendations. It is ORDERED that plaintiff's damage claims against defendants Hoyt and Cook in their official capacities, and his request for injunctive relief against the New York State Departm ent of Corrections and Community Supervision, are DISMISSED. Plaintiffs complaint is otherwise be accepted for filing, with leave to replead only with regard to the damage claims asserted against defendants Hoyt and Cook in their individual capacities. Plaintiffs Motion to Replead and/or Amend, # 7 , is referred to Magistrate Judge Peebles. Signed by Senior Judge Thomas J. McAvoy on 10/20/2017. (Copy served upon the Pro Se plaintiff via regular mail)(meb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JOHN NEWMAN,
Plaintiff,

Civil Action No.
3:17-CV-808 (TJM/DEP)

v.
RICK HOYT and SCOTT COOK,
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.

David E. Peebles, Chief United States Magistrate Judge. In his September 19, 2017
Report, Recommendation and Order, Magistrate Judge Peebles granted plaintiff’s in forma
pauperis application and, after conducting a 28 U.S.C. § 1915(e) initial review,
recommended that plaintiff's damage claims against defendants Hoyt and Cook in their
official capacities, and his request for injunctive relief against the New York State
Department of Corrections and Community Supervision, be dismissed, but that his
complaint otherwise be accepted for filing, with leave to replead only with regard to the
damage claims asserted against defendants Hoyt and Cook in their individual capacities.

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Ord., Rep. & Rec., dkt. # 5, pp. 13-14 (dkt. # 6); see also id. p. 11. 1 Magistrate Judge
Peebles also noted that “[i]n the event plaintiff does not avail himself of the opportunity to
amend, this action will proceed with respect to plaintiff's claims asserted against defendants
in their official capacities to the extent plaintiff seeks prospective injunctive relief against
those individuals.” Id. p. 14, n. 5.
Plaintiff did not file objections to the Report, Recommendation and Order [dkt. # 6],
and the time to do so has expired. However, Plaintiff filed a “Motion to Replead and/or
Amend,” [dkt. # 7] which, liberally construed, appears to be plaintiff’s amended complaint.
II.

DISCUSSION
After examining the record, this Court has determined that the Report,

Recommendation and Order is not subject to attack f or plain error or manifest injustice.
III.

CONCLUSION
Accordingly, the Court ADOPTS the Report, Recommendation and Order [dkt. # 6]

for the reasons stated therein. Thus, it is hereby
ORDERED that plaintiff's damage claims against defendants Hoyt and Cook in their
official capacities, and his request for injunctive relief against the New York State
Department of Corrections and Community Supervision, are DISMISSED. Plaintiff’s
complaint is otherwise be accepted for filing, with leave to replead only with regard to the
damage claims asserted against defendants Hoyt and Cook in their individual capacities.
Plaintiff’s “Motion to Replead and/or Amend,” dkt. # 7, is referred to Magistrate

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(“With respect to plaintiff's claims asserted against defendants Hoyt and Cook in their official
capacities seeking money damages, it is possible that plaintiff could assert viable damage claims against
those individuals if he asserts the claims against defendants in their individual capacities.”)

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Judge Peebles.
IT IS SO ORDERED.
Dated:October 20, 2017

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