Breska v. Sears et al

Filing 13

ORDER: ORDERS that 12 Report and Recommendation is accepted in its entirety. ORDERS that 10 Motion to Dismiss is granted. ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case. Signed by Senior Judge Frederick J. Scullin, Jr on 9/24/13. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________________
DAVID BREKSA a/k/a DAVID BRESKA,
Plaintiff,
v.

9:12-CV-952
(FJS/RFT)

SERGEANT RICE, Correctional Sergeant, Clinton
Correctional Facility; and JOHN DOE, Correctional
Officer, Clinton Correctional Facility
Defendants.
__________________________________________________
APPEARANCES

OF COUNSEL

DAVID BREKSA
11-A-2493
Auburn Correctional Facility
135 State Street
Box 618
Auburn, New York 13021
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant

GREGORY J. RODRIGUEZ, AAG

SCULLIN, Senior Judge
ORDER
Currently before the Court is Magistrate Judge Treece's September 3, 2013 ReportRecommendation and Order, in which he recommended that this Court grant Defendant Rice’s
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. 12. The
parties did not file any objections to this recommendation.

When a party does not object to a magistrate judge’s report-recommendation, the court
reviews that report-recommendation for clear error or manifest injustice. See Linares v.
Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and
footnote omitted). After conducting this review, “the Court may ‘accept, reject, or modify in
whole or in part, the . . . recommendations made by the magistrate judge.’” Id. (quoting 28
U.S.C. § 636(b)(1)(C)).
The Court has reviewed Magistrate Judge Treece's September 3, 2013 ReportRecommendation and Order for clear error and manifest injustice; and, finding none, the Court
hereby
ORDERS that Magistrate Judge Treece’s September 3, 2013 Report-Recommendation
and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant Rice’s motion to dismiss is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and
close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 24, 2013
Syracuse, New York

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