Smith v. Wildermuth et al

Filing 45

DECISION AND ORDER: ORDERED, that the Court accepts and adopts all of Magistrate Judge Dancks's recommendations for the reasons stated in her thorough report (Dkt. No. 43 ). ORDERED, that Defendants' motion to dismiss for failure to stat e a claim (Dkt. No. 32 ) is GRANTED IN PART AND DENIED IN PART as stated herein. ORDERED, that if Plaintiff elects to re-plead the claims for which he has been granted leave, he must do so within thirty (30) days of the date of this Decision and Or der, and he must file a complete pleading that will supercede the former in all respects (i.e. allegations or claims made in a prior pleading cannot be incorporated by reference). Signed by Senior Judge Thomas J. McAvoy on 3/11/13. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
AUREL SMITH,
Plaintiff,
9:11-CV-0241
v.
M. WILDERMUTH, et al.,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court

to the Hon. Thérèse Wiley Dancks, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). In her
January 24, 2013 Report-Recommendation and Order (Dkt. No. 43), Magistrate Judge
Dancks recommends that certain claims be dismissed, as discussed below. Plaintiff has
filed objections to portions of the Report-Recommendation and Order. (Dkt. No. 44).
II.

STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged,

the district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28
U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d
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Cir.1997). After reviewing the report and recommendation, the Court may “accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C).
III.

CONCLUSION
With this standard in mind, and after reviewing Plaintiff’s objections, the Court

accepts and adopts all of Magistrate Judge Dancks’s recommendations for the reasons
stated in her thorough report. Therefore, it is hereby
ORDERED that Defendants' motion to dismiss for failure to state a claim (Dkt.
No. 32) is GRANTED IN PART AND DENIED IN PART. In this regard it is,
ORDERED that the following claims are dismissed without leave to
amend: (1) all of Plaintiff’s state law claims; (2) the claim that Defendant Martuscello
denied Plaintiff’s grievance regarding the alleged use of excessive force; (3) the claims
that Defendants Martuscello, Rock, and Evans failed to file criminal charges on Plaintiff’s
behalf; (4) the claim that Defendant Martuscello failed to contact the Inspector General’s
office; (5) the claim that Defendants Martuscello, Rock, and Evans failed to respond to
Plaintiff’s letters and grievances; and (6) the retaliation claim against Defendant Rock; and
it is further,
ORDERED that the following claims are dismissed with leave to amend: (1) the
claim that Defendant Martuscello permitted abusive conditions to exist at Coxsackie
Correctional Facility; and (2) the claim that Defendants Rock and Evans failed to protect
Plaintiff from the attack by Inmate Scarbrough; and it is further,
ORDERED that the motion is denied in all other respects.
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Based upon the above, the following claims remain: (1) Plaintiff’s First Amendment
and RLUIPA claims against Defendant Wildermuth; (2) the excessive force claims against
Defendants Wildermuth, Hale, Slater, Ensel, Morris, and Noethe; and (3) the
failure-to-intervene claims against Defendants Saez, Chewers, and Bailey.
If Plaintiff elects to re-plead the claims for which he has been granted leave, he
must do so within thirty (30) days of the date of this Decision and Order, and he must file a
complete pleading that will supercede the former in all respects (i.e. allegations or claims
made in a prior pleading cannot be incorporated by reference).
IT IS SO ORDERED.
Dated: March 11, 2013

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