Smith v. Rock et al

Filing 42

DECISION and ORDER: ORDERED that 41 Report and Recommendation is accepted in whole. ORDERED that 37 Motion to Dismiss is GRANTED in part and DENIED in part. All claims against defendants Fifield, Gettman, Fizzazio, Mitchell, Ramsdell, Thom pson, and Rock are DISMISSED with leave to amend within thirty (30) days of the date of this Decision and Order. Defendants Uhler, Anctel, and Stickney are directed to respond to the complaint. Signed by Judge David N. Hurd on 12/17/13. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------PAUL SMITH,
Plaintiff,
No. 9:12-CV-1153
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D. ROCK, Superintendent, Upstate Correctional
Facility; DONALD UHLER, Deputy of Security,
Upstate Correctional Facility; ANCTEL, Lieutenant,
Upstate Correctional Facility; FIFIELD, Sergeant,
Upstate Correctional Facility; GARY GETTMAN,
Sergeant, Upstate Correctional Facility; FIZZAZIO,
Officer, Upstate Correctional Facility; MITCHELL,
Male Officer, Upstate Correctional Facility;
T. RAMSDELL, Officer, Upstate Correctional Facility;
THOMPSON, Officer, Upstate Correctional Facility;
L. STICKNEY, Education Supervisor, Upstate
Correctional Facility,

Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

PAUL SMITH, 00-A-2268
Plaintiff pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224

DAVID N. HURD
United States District Judge

CHRISTOPHER W. HALL, ESQ.
Ass't Attorney General

DECISION and ORDER
Pro se plaintiff Paul Smith brought this action pursuant to 42 U.S.C. § 1983. On
November 27, 2013, the Honorable Thérèse Wiley Dancks, United States Magistrate Judge,
advised by Report-Recommendation that defendants' motion to dismiss be granted in part
and denied in part. No objections to the Report-Recommendation were filed.
Based upon a careful review of the entire file and the recommendations of the
Magistrate Judge, 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 pursuant to Federal Rule of Civil Procedure
12(b)(6) is GRANTED in part and DENIED in part;
2. All claims against defendants Fifield, Gettman, Fizzazio, Mitchell, Ramsdell,
Thompson, and Rock are DISMISSED with leave to amend within thirty (30) days of the
date of this Decision and Order;
3. Defendants Uhler, Anctel, and Stickney are directed to respond to the complaint;
and
4. The Clerk serve a copy of this Decision and Order upon plaintiff.
IT IS SO ORDERED.

Dated: December 17, 2013
Utica, New York.
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