Dabney et al v. Sawyer et al

Filing 60

ORDER: ORDERED that 59 Report and Recommendation is adopted in its entirety. ORDERED that 48 Motion for Judgment on the Pleadings is granted in part. ORDERED, that Plaintiff is granted leave to file an amended complaint within thirty (30) days of the filing of this Order to cure the deficiencies in his claims as identified in the Report-Recommendation. Any amended complaint will supersede the original Complaint in all respects and therefore must be a complete pleading. ORDERED, that this case is referred back to Judge Treece to lift the stay and set a schedule for proceeding. Signed by Senior Judge Lawrence E. Kahn on 9/30/13. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BARTRAM YIHNI DABNEY,
Plaintiff,
-against-

9:11-CV-0273 (LEK/RFT)

DONALD SAWYER, Executive Director,
Marcy Mental Hospital; JOANN
WALDRON, Chief of OMH Satellite,
Clinton Correctional Facility; DR.
BERGEN, Psychiatrist, Clinton
Correctional Facility; DR. LEE, Medical
Director, Clinton Correctional Facility; DR.
FAROOKI, Dentist; SARA NEPHEW,
OMH Therapist, Clinton Correctional
Facility; C.O. BEESHAW, Correctional
Officer, Clinton Correctional Facility; DR.
BATTU, Psychiatrist, Great Meadow
Correctional Facility; J. NOCERA,
Assistant Inspector General, Department
of Correctional Services; and V.
DONAHUE, Social Worker, Great
Meadow Correctional Facility,
Defendants.

ORDER
This pro se action under 42 U.S.C. §§ 1983, 1985, and 1986 comes before the Court on a
Report-Recommendation filed September 13, 2013, by the Honorable Randolph F. Treece, U.S.
Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Dkt. No. 59 (“ReportRecommendation”). Judge Treece recommends that Defendants’ Motion for judgment on the
pleadings be granted as to Plaintiff’s claims for: (1) improper investigation by Defendant J. Nocera;
(2) inadequate winter clothing provision by Defendant Foley; and (3) inadequate medical care by

Dr. Lee for Plaintiff’s sore rib.1 See Report-Rec. at 24; Dkt. No 48 (“Motion”). Judge Treece
recommends denying Defendants’ Motion as to Plaintiff’s claims for: (4) inadequate mental health
care by Defendants Sawyer, Waldron, Savage, Donahue, Battu, Bergen, and Nephew; (5) inadequate
physical health care by Dr. Lee for Plaintiff’s Hepatitis C; and (6) inadequate dental care by
Defendant Farooki. Id. at 24-25. Judge Treece also recommends that the following claims, on
which Defendants did not seek judgment on the pleadings, should proceed: (7) retaliation by
Defendants Donahue, Bergen, Beeshaw, Savage, Waldron, Sawyer, and Nephew; (8) conspiracy
among Defendants Savage, Waldron, Bergen, Sawyer, and Nephew; (9) racial discrimination by
Defendants Foley and Dr. Lee; and (10) failure to protect by all Defendants. Id. at 25.
Neither Plaintiff nor Defendants filed objections to the Report-Recommendation within the
fourteen-day objection period. See 28 U.S.C. § 636(b); FED. R. CIV. P. 72(b)(2). See generally Dkt.
The Court therefore has reviewed the Report-Recommendation for clear error and found none. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (“As a rule, a party’s failure to object to any
purported error or omission in a magistrate judge’s report waives further judicial review of the
point.”); Farid v. Bouey, 554 F. Supp. 2d 301, 306-07 & n.2 (N.D.N.Y. 2008).
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 59) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 48) for judgment on the pleadings is
GRANTED in part consistent with the Report-Recommendation (Dkt. No. 59); and it is further

1

Judge Treece recommends that Plaintiff’s second and third claims be dismissed without
prejudice to Plaintiff repleading them in an amended complaint with proper support.
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ORDERED, that Plaintiff is granted leave to file an amended complaint within thirty (30)
days of the filing of this Order to cure the deficiencies in his claims as identified in the ReportRecommendation. Any amended complaint will supersede the original Complaint in all respects
and therefore must be a complete pleading; and it is further
ORDERED, that this case is referred back to Judge Treece to lift the stay and set a schedule
for proceeding; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on all parties.
IT IS SO ORDERED.

DATED:

September 30, 2013
Albany, NY

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