Caldwell v. Doe et al

Filing 24

DECISION AND ORDER: ORDERED, that Defendants' motion to dismiss (Dkt. No. 17 ) is GRANTED, in part. ORDERED, that Plaintiff's claims for negligence are DISMISSED with prejudice. ORDERED, that Plaintiff's claims for medical indiffere nce, including all claims against defendant J. Stout, are DISMISSED with leave to replead. ORDERED, that Defendants' motion to dismiss otherwise is DENIED. ORDERED, the file is returned to the Magistrate Judge for any further proceedings. Signed by Judge David N. Hurd on 8/27/10. (Decision and Order served on plaintiff by regular mail) (alh, )

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Caldwell v. Winston, et al Doc. 24 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CORY CALDWELL, Plaintiff, vs GETTMANN, Corrections Officer; J. STOUT, Medical Nurse; and WINSTON, Correctional Officer, Upstate Correctional Facility, formerly known as John Doe, Defendants. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ APPEARANCES: CORY CALDWELL 07-A-6900 Plaintiff, Pro Se UpState Correctional Facility PO Bo 2001 Malone, NY 12953 HON. ANDREW M. CUOMO Attorney General of the State of New York Attorney for Defendants Department of Law The Capitol Albany, New York 12224 DAVID N. HURD United States District Judge DECISION and ORDER Plaintiff, Cory Caldwell, commenced this civil rights action in May 2009, pursuant to 42 U.S.C. 1983. By Report-Recommendation dated July 23, 2010, the Honorable David E. Peebles, United States Magistrate Judge, recommended that defendants' motion to dismiss (Docket No. 17) be granted, in part, and that plaintiff's claims for negligence be dismissed ADRIENNE J. KERWIN, ESQ. Asst. Attorney General 9:09-CV-580 Dockets.Justia.com with prejudice, and that plaintiff's claims for medical indifference, including all claims against defendant J. Stout, be dismissed with leave to replead; and further recommended that defendants' motion to dismiss otherwise be denied. No objections to the ReportRecommendation have been filed. Based upon a careful review of the file, and the recommendations of Magistrate Judge Peebles, the Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. 636(b)(1). Accordingly, it is ORDERED that 1. Defendants' motion to dismiss (Docket No. 17) is GRANTED, in part; 2. Plaintiff's claims for negligence are DISMISSED with prejudice; 3. Plaintiff's claims for medical indifference, including all claims against defendant J. Stout, are DISMISSED with leave to replead; 4. Defendants' motion to dismiss otherwise is DENIED; 5. The file is returned to the Magistrate Judge for any further proceedings. IT IS SO ORDERED. Dated: August 27, 2010 Utica, New York. -2-

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