Emerson v. Department of Correctional Services et al

Filing 142

MEMORANDUM-DECISION AND ORDER: ORDERED that Magistrate Judge Andrew T. Baxter's 141 Report and Recommendation is accepted. ORDERED that 107 Defendants' Motion for Summary Judgment is granted and the action is dismissed. Signed by Chief Judge Norman A. Mordue on 9/30/11.{order served via regular mail on all non-ecf parties} (nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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MONTELL EMERSON,
Plaintiff,
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9:08-CV-824 (NAM/ATB)

NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES, ET AL.,
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Defendants.
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APPEARANCES:

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Montell Emerson
06-A-2900
Wende Correctional Facility
P.O. Box 1187
Alden, New York 14004
Plaintiff, pro se
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York
CHARLES J. QUACKENBUSH, Esq., Assistant Attorney General
The Capitol
Albany, New York 12224
Attorney for Defendants

Hon. Norman A. Mordue, Chief U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
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Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Services (“DOCCS”), brought this action under 42 U.S.C. § 1983 for monetary and
declaratory relief. In his amended complaint (Dkt. No. 85), plaintiff alleges that defendants
denied him constitutionally adequate medical care while he was in the custody of the Walsh
Regional Medical Unit in the Mohawk Correctional Facility. Plaintiff also alleges that DOCCS
failed to accommodate his disabilities to enable him to participate in outdoor exercise, in violation

of the Americans with Disabilities Act and section 504 of the Rehabilitation Act, and that
DOCCS employees initiated unfounded disciplinary charges against him in retaliation for his
filing of this lawsuit, in violation of his rights under the First Amendment.
Defendants moved (Dkt. No. 107) for summary judgment dismissing the remaining claims
in this action. Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United
States Magistrate Judge Andrew T. Baxter issued a thorough Report and Recommendation (Dkt.
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No. 141) reviewing this voluminous record and the applicable law. Magistrate Judge Baxter
recommends that the motion be granted and the amended complaint dismissed.
Neither party has objected. The Court has reviewed Magistrate Judge Baxter’s Report and
Recommendation and approves it in all respects. The recent Second Circuit ruling in Phelan v.
Thomas, 2011 WL 4470023 (2d Cir. Sept. 28, 2011), decided after the Report and

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Recommendation was issued, does not alter the Court’s conclusion.
It is therefore
ORDERED that United States Magistrate Judge Andrew T. Baxter’s Report and
Recommendation (Dkt. No. 141) is accepted; and it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No. 107) is granted and
the action is dismissed; and it is further

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ORDERED that the Clerk serve copies of this Memorandum-Decision and Order in
accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
September 30, 2011

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