Phillip v. Brown et al

Filing 17

ORDER: ORDERS that Magistrate Judge Lowe's 16 Report and Recommendation is accepted in its entirety. ORDERES that 14 Motion to Dismiss is denied. Signed by Senior Judge Frederick J. Scullin, Jr on 2/25/11. {order served via regular mail on all non-ecf parties}(nas)

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Phillip v. Brown et al Doc. 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _______________________________________________ KURT PHILLIP, also known as Kurt Philip, Plaintiff, v. WILLIAM D. BROWN, Superintendent, Eastern Correctional Facility; and YASIN LATIF, Imaam and Coordinating Chaplin of Eastern Correctional Facility, Defendants. _______________________________________________ APPEARANCES KURT PHILLIP also known as Kurt Philip 99-A-3711 Eastern New York Correctional Facility Box 338 Napanoch, New York 12458 Plaintiff pro se OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL The Capitol Albany, New York 12224 Attorneys for Defendants SCULLIN, Senior Judge ORDER On August 24, 2010, Defendants filed a motion to dismiss Plaintiff's complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 14. Plaintiff opposed that motion. See Dkt. No. 15. On February 4, 2011, Magistrate Judge Lowe issued a Report-Recommendation in which he found that Plaintiff had stated a class-of-one CHARLES J. QUACKENBUSH, ESQ. OF COUNSEL 9:10-CV-643 (FJS/GHL) equal protection claim1 against both Defendants and, therefore, recommended that this Court deny Defendants' motion. See Dkt. No. 16. The parties did not file any objections to that recommendation. 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 this 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 Lowe's February 4, 2011 ReportRecommendation for clear error and manifest injustice; and, finding none, the Court hereby ORDERS that Magistrate Judge Lowe's February 4, 2011 Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendants' motion to dismiss Plaintiff's complaint is DENIED; and the Court further As the Second Circuit recently reiterated, "[a] class-of-one claim exists 'where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'" Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000)). -2- 1 ORDERS that this matter is referred to Magistrate Judge Lowe for all further pretrial matters; 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: February 25, 2011 Syracuse, New York -3-

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