Walter v. Fischer et al

Filing 35

MEMORANDUM-DECISION AND ORDER: ORDERED that the 28 Report and Recommendation is adopted and accepted in all respects; ORDERED that 19 defendants' motion is granted, and the complaint is dismissed on the merits under Fed. R. Civ. P. 12(b)(6); ORDERED that plaintiff's 24 motion for a preliminary injunction and temporary restraining order is denied. Signed by Chief Judge Norman A. Mordue on 9/28/2009. {Memorandum-Decision & Order served on plaintiff via regular mail} (mgh)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
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LAWRENCE J. WALTER, Plaintiff, -vBRIAN FISCHER, Commissioner, Department of Correctional Services; JOHN H. NUTALL, Deputy Commissioner for Program Services; DWIGHT BRADFORD, Director of Substance Abuse; and S. SPURGEON, Senior Corrections Counselor, Defendants.
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9:08-CV-908 (NAM/DRH)

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APPEARANCES: LAWRENCE J. WALTER 01-B-2188 Mid-State Correctional Facility Post Office Box 2500 Marcy, New York 13403 Plaintiff, Pro Se HON. ANDREW M. CUOMO, Attorney General for the State of New York MICHAEL G. McCARTIN, Esq., Assistant Attorney General The Capitol Albany, New York 12224-0341 Attorney for Defendants

Hon. Norman A. Mordue, Chief U.S. District Judge: MEMORANDUM-DECISION AND ORDER Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action under 42 U.S.C. § 1983. Defendants move (Dkt. No. 19) to dismiss the action in its entirety. Plaintiff moves (Dkt. No. 24) for a preliminary injunction and temporary restraining order. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), the Court referred

defendants' dismissal motion to United States Magistrate Judge David R. Homer. Magistrate Judge Homer has issued a Report and Recommendation (Dkt. No. 28) recommending that defendants' motion to dismiss be granted and that the complaint be dismissed in its entirety as to all claims and all defendants. Plaintiff has submitted an objection (Dkt. No. 31). In view of plaintiff's objections, pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review of the entire matter. Upon de novo review, the Court adopts and accepts Magistrate Judge Homer's Report and Recommendation in all respects. The complaint is dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. In light of this determination, plaintiff's motion for a preliminary injunction and temporary restraining order is denied. In addition, Magistrate Judge Homer properly denied plaintiff's request (Dkt. No. 25) for in forma pauperis status. It is therefore ORDERED that the Report and Recommendation of United States Magistrate Judge David R. Homer (Dkt. No. 28) is adopted and accepted in all respects; and it is further ORDERED that defendants' motion (Dkt. No. 19) is granted, and the complaint is dismissed on the merits under Fed. R. Civ. P. 12(b)(6); and it is further
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ORDERED that plaintiff's motion (Dkt. No. 24) for a preliminary injunction and temporary restraining order is denied. IT IS SO ORDERED. September 28, 2009 Syracuse, New York

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