Benninger v. Hoyt et al

Filing 9

DECISION and ORDER adopting Report and Recommendations re 7 Report and Recommendations. ORDERED that Magistrate Judge Peebles Report-Recommendation (Dkt. No. 7) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiffs equal protection, false arrest, and malicious prosecution claims against Defendants Hoyt and Cook are sua sponte DISMISSED from Plaintiffs Complaint (Dkt. No. 1) with leave to replead within THIRTY (30) DAYS from the date of this Decision and Ord er; ORDERED that SURVIVING the Courts sua sponte review of Plaintiffs Complaint (Dkt. No. 1) is Plaintiffs excessive force claim against Defendant Palm; and it is further ORDERED that the Clerk of Court is directed to issue a Summons for Defendant Palm and forward it, along with copies of the Complaint and a USM-285 Form, to the U.S. Marshal for service upon Defendant Palm. Signed by Chief Judge Glenn T. Suddaby on 12/12/2017. (Copy served via regular and certified mail)(khr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
TIMATHY A. BENNINGER,
Plaintiff,
3:17-CV-0985
(GTS/DEP)

v.
RICK HOYT, Parole Officer;
SCOTT COOK, Parole Officer, and
AARON PALM, Sr. Parole Officer,
Defendants.
__________________________________________
APPEARANCES:
TIMOTHY A. BENNINGER, 17-B-3226
Plaintiff, Pro Se
Elmira Correctional Facility
P.O. Box 500
Elmira, New York 14902
GLENN T. SUDDABY, Chief United States District Judge

DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Timathy A.
Benninger (“Plaintiff”) against the three above-captioned New York State parole officers
(“Defendants”), is U.S. Magistrate Judge David E. Peebles’ Report-Recommendation
recommending that Plaintiff’s Fourteenth Amendment equal protection, false arrest, and
malicious prosecution claims against Defendants Hoyt and Cook be dismissed with leave to
replead but that Plaintiff’s Fourteenth Amendment excessive force claim against Defendant Palm
should remain pending in the action. (Dkt. No. 7.) Plaintiff has not filed an objection to the
Report-Recommendation and the deadline in which to do so has expired. For the reasons set
forth below, the Report-Recommendation is adopted in its entirety.

When, as here, no objection is made to a report-recommendation, the Court subjects that
report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition. When performing such a “clear error” review, “the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Id.: see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1.
(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a
magistrate judge’s] report to which no specific objection is made, so long as those sections are
not facially erroneous.”) (internal quotation marks and citations omitted).
Based upon a review of this matter, the Court can find no clear error in the ReportRecommendation: Magistrate Judge Peebles employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts. As a result, the Court accepts and adopts
the Report-Recommendation for the reasons stated therein. (Dkt. No. 7.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 7) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s equal protection, false arrest, and malicious prosecution
claims against Defendants Hoyt and Cook are sua sponte DISMISSED from Plaintiff’s
Complaint (Dkt. No. 1) with leave to replead within THIRTY (30) DAYS from the date of this
Decision and Order;
ORDERED that SURVIVING the Court’s sua sponte review of Plaintiff’s Complaint
(Dkt. No. 1) is Plaintiff’s excessive force claim against Defendant Palm; and it is further

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ORDERED that the Clerk of Court is directed to issue a Summons for Defendant Palm
and forward it, along with copies of the Complaint and a USM-285 Form, to the U.S. Marshal
for service upon Defendant Palm.
Dated: December 12, 2017
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
United States District Judge

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