Melecio v. Fischer et al

Filing 57

ORDER: ORDERED, that Magistrate Judge Treeces September 27, 2011 Report-Recommendation and Order (Dkt. No. 55 ) is ACCEPTED in its entirety for the reasons stated therein. ORDERED, that Defendants' motion to dismiss (Dkt No. 46 ) is GRANTE D and Plaintiff's consolidated amended complaint is DISMISSED. ORDERED, that Plaintiff's claims against Defendant Horner and all unidentified Defendants are DISMISSED, pursuant to 28 U.S.C. § 1915A, for failure to state a claim. ORDE RED, that the Clerk of the Court shall enter judgement in favor of Defendants and close both Melecio v. Fischer, 9:10-CV-289, and Melecio v. Greene Correctional Facility, 9:10-CV-470. Signed by Senior Judge Frederick J. Scullin, Jr on 1/11/12. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________________
JULIO MELECIO,
Plaintiff,
v.

BRIAN FISCHER, New York State Commissioner
of Corrections; JERRY JANIEC, Inmate Grievance
Program Supervisor of Greene Correctional Facility;
KATHY APPLE, Business Office Clerk, Greene
Correctional Facility; MR. WELHELM, Senior
Correctional Counselor, Greene Correctional
Facility; MR. KROM, Inmates Account Clerk;
MR. DIRIE, Deputy of Security; MICHAEL
GRAZIANO, Deputy Superintendent of
Administrative Services, Greene Correctional Facility;
MARIE HAMMOND, Deputy for Program, Greene
Correctional Facility; JEFF MCKOY, Superintendent,
Greene Correctional Facility; MR. GLASSER, Sgt. at
the S.H.U. 200, Greene Correctional Facility; MR.
DOUIGH, Sgt. at the S.H.U. 200, Greene Correctional
Facility; MR. S. LUCAS, Correctional Officer, Greene
Correctional Facility; MR. WHITEASH, Correctional
Officer, Greene Correctional Facility; MR. D.
RAMIREZ, Correctional Officer, Greene Correctional
Facility; MR. LEONARDO, Correctional Officer,
Green Correctional Facility; MR. B. JUNE, Correctional
Officer, Greene Correctional Facility; MR. D. VINCENT,
Correctional Officer, Greene Correctional Facility;
MS. P. BUNCH, Correctional Officer, Greene Correctional
Facility; MS. M. GONZALEZ, Correctional Officer,
Greene Correctional Facility; MR. MURPHY,
Correctional Officer, Greene Correctional Facility; MR.
G. MILLER, Correctional Officer, Greene Correctional
Facility; JANE DOE, Nurse, Administrative Office, Greene
Correctional Facility; MS. SMITH, Correctional Doctor,
Greene Correctional Facility; MS. M. REED, Correctional
R.N., Greene Correctional Facility; MS. S. DIMICK,
Correctional R.N., Greene Correctional Facility; MS. S.
DERR, Correctional R.N., Greene Correctional Facility;

9:10-CV-289
(FJS/RFT)
LEAD CASE

JANE DOE, Mail Room Clerk, Greene Correctional Facility;
MS. A. HORNER, Correctional Officer, Greene Correctional
Facility; MR. MAHON, Correctional Officer, Greene
Correctional Facility; DOUG BOTSFORD; D. UHLER;
MARIO DOUYON DEAZEV; DR. ADAMS; NANCY SMITH;
ELIZABETH WHITE; GERALDINE WILSON; ROXANNE
LECLERC; TRUDY-LYNN CARON; INSPECTOR
GENERAL, DOCS; and IRRUSSO, Corrections Counselor,
Defendants.
________________________________________________________
________________________________________________________
JULIO MELECIO,
Plaintiff,
v.

9:10-CV-470
(FJS/RFT)
MEMBER CASE

GREENE CORRECTIONAL FACILITY BUSINESS OFFICE
CLERK JANE DOE; INMATE ACCOUNTS OFFICE CLERK
JANE DOE; INMATES GRIEVANCE OFFICE SUPERVISOR
JOHN DOE; DEPUTY OF SECURITY JOHN DOE;
SUPERINTENDENT JOHN DOE; MR. GLASSER; C.O.
VINCENT; COMMISSIONER OF CORRECTIONS;
INSPECTOR GENERAL; CORRECTIONAL COUNSELOR
IRUSSO; S. LUCAS; and MR. D. RAMIREZ,
Defendants.
________________________________________________________
APPEARANCES

OF COUNSEL

JULIO MELECIO
07-A-3977
Auburn Correctional Facility
P.O. Box 618
Auburn, New York 13021
Plaintiff pro se1
1

According to the New York State Department of Corrections and Community
(continued...)
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OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

WILLIAM J. MCCARTHY, JR., AAG

SCULLIN, Senior Judge
ORDER
Plaintiff commenced two separate actions pursuant to 42 U.S.C. § 1983. See Melecio v.
Fischer, 9:10-CV-289; Melecio v. Greene Correctional Facility, 9:10-CV-470. On October 1,
2010, Plaintiff moved to amend his complaint and to consolidate the two actions. See Dkt. No.
33. In a Memorandum-Decision and Order dated November 22, 2010, this Court found that the
form, substance, and Defendants involved in the two actions were nearly identical and granted
Plaintiff's motion to amend and consolidate the two actions with Melecio v. Fischer, 9:10-CV289, designated as the lead case. See Dkt. No. 34 at 5-7. Furthermore, this Court directed the
Clerk of the Court to file Plaintiff's proposed amended complaint as the consolidated complaint
for both cases.
In his consolidated amended complaint, Plaintiff alleges that Defendants retaliated against
him for filing grievances and violated his rights under the Eighth Amendment. See Dkt. No. 35,
Consolidated Amended Complaint. Defendants moved to dismiss the consolidated amended
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 46.
Plaintiff did not file any papers in opposition to that motion.

1

(...continued)
Supervision's website, http://nysdoccslookup.doccs.ny.gov, Plaintiff was released from custody
on October 21, 2011. Although the Court reminded Plaintiff to advise the Court of his change of
address upon release, he has not done so. See Text Order dated October 13, 2011.
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On September 27, 2011, Magistrate Judge Treece issued a Report-Recommendation and
Order, in which he recommended that the Court grant Defendants' motion and dismiss Plaintiff's
consolidated amended complaint in its entirety. See Dkt. No. 55. Plaintiff did not file any
objections to those recommendations.2
When a party does not object to a magistrate judge's report-recommendation, the court
reviews that report-recommendation for clear error or manifest injustice. See Linares v.
Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and
footnote omitted). After conducting that review, "the Court may 'accept, reject, or modify, in
whole or in part, the . . . recommendations made by the magistrate judge.'" Id. (quoting 28
U.S.C. § 636(b)(1)(C).
The Court has reviewed Magistrate Judge Treece's September 27, 2011 ReportRecommendation and Order for clear error and manifest injustice; and, finding none, the Court
hereby
ORDERS that Magistrate Judge Treece's September 27, 2011 Report-Recommendation
and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss is GRANTED and Plaintiff's consolidated
amended complaint is DISMISSED; and the Court further
ORDERS that Plaintiff's claims against Defendant Horner and all unidentified
Defendants are DISMISSED, pursuant to 28 U.S.C. § 1915A, for failure to state a claim; and the
Court further

2

The Court granted Plaintiff's request for a sixty-day extension of time, until December 8,
2011, in which to file any objections. See Text Order dated October 13, 2011.
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ORDERS that the Clerk of the Court shall enter judgement in favor of Defendants and
close both Melecio v. Fischer, 9:10-CV-289, and Melecio v. Greene Correctional Facility, 9:10CV-470; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: January 11, 2012
Syracuse, New York

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