Walker v. Donelli et al

Filing 22

ORDER: ORDERS that Magistrate Judge Homer's November 21, 2008 20 Report-Recommendation and Order is ADOPTED in its entirety; ORDERS that Defendants' 14 motion to dismiss is GRANTED and Plaintiff's Complaint is DISMISSED. Signed by Senior Judge Frederick J. Scullin, Jr on 4/9/2009. {Order served on plaintiff via regular mail} (mgh)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _______________________________________________ SHERMAN WALKER, Plaintiff, v. JOHN J. DONELLI; L. JUBERT, DSS; E. JOCK; D. HOLFORD; and S. LECLAIR, Defendants. _______________________________________________ APPEARANCES SHERMAN WALKER 92-A-7141 Bare Hill Correctional Facility Caller Box 20 Malone, New York 12953 Plaintiff pro se OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL The Capitol Albany, New York 12224 Attorneys for Defendants SCULLIN, Senior Judge ADRIENNE J. KERWIN, AAG OF COUNSEL 9:08-CV-406 (FJS/DRH)

ORDER In a Report-Recommendation and Order dated November 21, 2008, Magistrate Judge Homer recommended that this Court grant Defendants' motion to dismiss. See Dkt. No. 20. Plaintiff objects to Magistrate Judge Homer's Report-Recommendation and Order on the grounds that he has pled an Eighth Amendment violation and a Fourteenth Amendment Due Process

violation and that Magistrate Judge Homer erred in alternatively finding that Defendants were entitled to qualified immunity. See Dkt. No. 21 at 3-6.1 With respect to Plaintiff's objections regarding his Eighth Amendment and Due Process claims, the Court concludes that Magistrate Judge Homer correctly applied the appropriate law and that Plaintiff's objections regarding these issues are without merit for the reasons stated in the Report-Recommendation and Order.2 Therefore, the Court finds that it need not address qualified immunity. Accordingly, after carefully considering Magistrate Judge Homer's ReportRecommendation and Order, Plaintiff's objections thereto, as well as the applicable law, and for the reasons stated herein and in Magistrate Judge Homer's Report-Recommendation and Order, the Court hereby ORDERS that Magistrate Judge Homer's November 21, 2008 Report-Recommendation and Order is ADOPTED in its entirety; and the Court further

Plaintiff also discusses Magistrate Judge Homer's dismissal of his claims against Defendants in their official capacities pursuant to the Eleventh Amendment. Plaintiff states that he did not intend to sue Defendants in their official capacities and that the Eleventh Amendment does not bar his action. The Court finds that Plaintiff does not actually object to the dismissal of the official capacity claims and has arguably voluntarily withdrawn them in his objections. Accordingly, the Court will dismiss the official capacity claims. With respect to Plaintiff's Eighth Amendment claim, the Court notes that Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), provides an additional ground to dismiss this § 1983 claim (in addition to Heck's application to Plaintiff's due process claim discussed in the ReportRecommendation and Order) because it implicates the validity of Plaintiff's sentence. -22

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ORDERS that Defendants' motion to dismiss is GRANTED and Plaintiff's Complaint is DISMISSED; and the Court further ORDERS that the Clerk of the Court shall enter judgment for Defendants and close this case. IT IS SO ORDERED. Dated: April 9, 2009 Syracuse, New York

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