Booker v. Rock et al

Filing 25

DECISION AND ORDER: Report-Recommendation is accepted in whole. See 28 U.S.C. 636(b)(1). ORDERED that 1. Defendants' motion to dismiss for failure to state a claim, Dkt. No. 17 , is GRANTED in part and DENIED in part; 2. Plaintiff's cla ims against defendant Rock are DISMISSED, with leave to amend; 3. Plaintiff's claims against DOCCS are DISMISSED, with prejudice; and 4. Defendant Marenelli is directed to answer the Eighth Amendment claim. Signed by Judge David N. Hurd on 2/13/2012. (ptm)(Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------MATTHEW D. BOOKER,
Plaintiff,
-v-

9:11-CV-247
(DNH/GHL)

D. ROCK, Superintendent of Upstate
Correctional Facility, and MR. MARENELLI,
Psychologist, Upstate Correctional Facility,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

MATTHEW BOOKER, 09-A-5397
Plaintiff pro se
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendant
The Capitol
Albany, NY 12224

ADELE M. TAYLOR-SCOTT
Ass't Attorney General

DAVID N. HURD
United States District Judge
DECISION and ORDER
Plaintiff brought this civil rights action pursuant to 42 U.S.C. § 1983. On January
31, 2011, the Honorable George H. Lowe, United States Magistrate Judge, advised, by
Report-Recommendation, that defendants' motion to dismiss for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted in part and denied in part.
Defendants timely filed objections to the Report-Recommendation.
Based upon a de novo review, the Report-Recommendation is accepted in whole.
See 28 U.S.C. 636(b)(1).
Therefore it is
ORDERED that
1. Defendants' motion to dismiss for failure to state a claim, Dkt. No. 17, is
GRANTED in part and DENIED in part;
2. Plaintiff's claims against defendant Rock are DISMISSED, with leave to amend;
3. Plaintiff's claims against DOCCS are DISMISSED, with prejudice; and
4. Defendant Marenelli is directed to answer the Eighth Amendment claim.
IT IS SO ORDERED.

Dated: February 13, 2012
Utica, New York.

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