Robinson v. Mundorff et al

Filing 40

DECISION AND ORDER adopting Magistrate Judge Peebles' 37 Report and Recommendations and granting the 32 Motion to dismiss. Directing the clerk to file Plaintiff's Second Amended Complaint and dismissing the Second Amended Complaint. Signed by Senior Judge Thomas J. McAvoy on 1/4/2013. (amt) [Pltf served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
GARY FRANKLIN ROBINSON,
Plaintiff,
-against-

9:11-CV-0758

W. BROWN, Superintendent, et al.,
Defendants.
________________________________________
DECISION & ORDER
Thomas J. McAvoy, S.U.S.D.J.:
This action, brought pursuant to 42 U.S.C. § 1983, was referred by this Court to the
Honorable David E. Peebles, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
In the Report-Recommendation, the Magistrate Judge recommends that
Defendants’ motion to dismiss be granted and the amended Complaint be dismissed with
leave to replead only the procedural due process claim against the defendants in their
individual capacities. No objections to the Report-Recommendation dated November 1,
2012 have been filed. After examining the record, this Court has determined that the
Report-Recommendation is not subject to attack for plain error or manifest injustice.
Accordingly, this Court adopts the Report-Recommendation for the reasons stated therein.
For the foregoing reasons, the Court ADOPTS the Report and Recommendation
and grants the motion to dismiss with leave to replead the procedural due process claim.
The Court notes that Plaintiff has already submitted a second proposed amended
complaint. Upon review of the second amended complaint pursuant to 28 U.S.C. §

1

1915A, the Court finds that the proposed Second Amended Complaint fails to adequately
state a procedural due process claim against any of the named Defendants. The Second
Amended Complaint complains of other inmates throwing feces that has nothing to do with
any of the named Defendants.
Accordingly, the Clerk of the Court is directed to: (1) file Plaintiff’s proposed second
amended complaint found at Dkt. No. 38(1) and; (2) dismiss the second amended
complaint pursuant to this Order.
IT IS SO ORDERED.
Dated: January 4, 2013

2