Myers v. Bucca et al

Filing 14

DECISION AND ORDER adopting 5 Report and Recommendations. Pltf's complaint is dismissed with prejudice as against defts Bucca, Wilhelm, Frisbee and Baeckmann. Pltf's complaint is dismissed without prejudice as against defts Seeley, Spitz and Haines. Any claims against deft Rowell, relating to his testimony at trial and for false arrest are dismissed with prejudice. Pltf's proposed 9 amended complaint shall be reviewed by Honorable Baxter to determine its compliance with the R&R and 28 USC 1915A and 1915(e). Signed by Judge David N. Hurd on 11/10/15. [Served by mail.] (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------SCOTT MYERS,
Plaintiff,
No. 6:15-CV-0553
(DNH/ATB)

-vCHARLES BUCCA, GREG SEELEY,
PATROLMAN ROWELL, ALAN FRISBEE,
DONNA BAECKMANN, MICHAEL SPITZ,
TERRY WILHELM AND BOBBY HAINES
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

SCOTT MYERS
Plaintiff pro se
Mid-State Correctional Facility
P.O. Box 2500
Marcy, NY 13403
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224

RACHEL M. KISH, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Scott Myers brought this civil rights action pursuant to 42 U.S.C. § 1983.
On May 14, 2015, the Honorable Andrew T. Baxter, United States Magistrate Judge, advised by
Report-Recommendation that plaintiff's complaint be dismissed sua sponte pursuant to 28 U.S.C.
§§ 1915A and 1915(e) as to all but one claim against only one defendant. Plaintiff timely filed
objections to the Report-Recommendation (ECF No. 6) and has already submitted a proposed
amended complaint (ECF No. 9).

Based upon a careful review of the entire file and the recommendations of the Magistrate
Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that:
1. Plaintiff's complaint is DISMISSED with prejudice as against defendants Bucca,
Wilhelm, Frisbee and Baeckmann, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i-iii);
2. Plaintiff’s complaint is DISMISSED without prejudice as against defendants Seeley,
Spitz and Haines pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii);
3. Any claims against defendant Rowell, relating to his testimony at trial and for false
arrest are DISMISSED with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii-iii);
4. Plaintiff’s proposed amended complaint (ECF No. 9) shall be reviewed by the
Honorable Andrew T. Baxter to determine its compliance with the Report-Recommendation
and 28 U.S.C. §§ 1915A and 1915(e); and
5. The Clerk is directed to serve a copy of this Decision and Order upon the parties in
accordance with the Local Rules.
IT IS SO ORDERED.

Dated: November 10, 2015
Utica, New York

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