Smith v. Wildermuth et al

Filing 68

DECISION & ORDER: ORDERED, that the Court ADOPTS the Report-Recommendation and Order (dkt. # 66 ) for the reasons stated therein. ORDERED that Defendants respond to (1) the excessive force claim against Defendants Wildermuth, Ensel, Slater, Hal e, Morris, and Noethe; (2) the conspiracy claim against Defendants Wildermuth, Ensel, Slater, Hale, Morris, and Noethe; (3) the First Amendment claim against Defendant Wildermuth; (4) the Eighth Amendment failure-to- intervene claim against Defendan ts Bailey, Chewens, and Saez; (5) the Eighth Amendment conditions of confinement claim against Defendant Martuscello; and (6) the Eighth Amendment failure-to-protect claim against Defendants Rock and Evans. ORDERED, that the state law claims and the RLUIPA claim are DISMISSED without leave to amend. ORDERED that the equal protection claim against Defendant Martuscello is DISMISSED with leave to amend. Signed by Senior Judge Thomas J. McAvoy on 1/29/15. (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
AUREL SMITH,
Plaintiff,
9:11-CV-0241
(TJM/TWD)

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 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 72.3(c). No objections
to Magistrate Judge Dancks’ Report-Recommendation and Order [dkt. # 66] have been
filed, and the time to do so has expired.
II.

DISCUSSION
After examining the record, this Court has determined that the Report-

Recommendation and Order is not subject to attack f or plain error or manifest injustice.
III.

CONCLUSION
Accordingly, the Court ADOPTS the Report-Recommendation and Order [dkt. # 66]

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for the reasons stated therein. Therefore, it is hereby
ORDERED that Defendants respond to (1) the excessive force claim against
Defendants Wildermuth, Ensel, Slater, Hale, Morris, and Noethe; (2) the conspiracy claim
against Defendants Wildermuth, Ensel, Slater, Hale, Morris, and Noethe; (3)
the First Amendment claim against Defendant Wildermuth; (4) the Eighth Amendment
failure-to- intervene claim against Defendants Bailey, Chewens, and Saez; (5) the Eighth
Amendment conditions of confinement claim against Defendant Martuscello; and (6) the
Eighth Amendment failure-to-protect claim against Defendants Rock and Evans. And it is
further
ORDERED that the state law claims and the RLUIPA claim
are DISMISSED without leave to amend; and it is further
ORDERED that the equal protection claim against Defendant
Martuscello is DISMISSED with leave to amend.

Dated:January 29, 2015

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