Gibbons v. Prindle

Filing 19

ORDER: ORDERS that Magistrate Judge Treece's September 18, 2013 18 Report- Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendant's 13 motion for partial dismis sal is GRANTED; and Plaintiff's Eighth amendment claim for sexual assault and any state tort claims are DISMISSED, and the Court further ORDERS that Defendant Prindle shall file an answer to Plaintiff's Eighth Amendment claim of excessiv e force within ten (10) days of the date of this Order; and the Court further ORDERS that this matter is referred to Magistrate Judge Treece for all further pretrial matters; 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. Signed by Senior Judge Frederick J. Scullin, Jr on 10/18/2013. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________________
DYLAN GIBBONS,
Plaintiff,
v.

9:12-CV-1605
(FJS/RFT)

S. PRINDLE, Correctional Officer, Eastern Correctional
Facility,
Defendant.
__________________________________________________
APPEARANCES

OF COUNSEL

DYLAN GIBBONS
02-A-2053
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541
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 18, 2013 ReportRecommendation and Order, in which he recommended that this Court grant Defendant’s motion
for partial dismissal as it pertains to Plaintiff’s Eighth Amendment claim for sexual assault and
any state tort claims. See Dkt. No. 18 at 8. Magistrate Judge Treece further recommended that
the Court direct Defendant Prindle to file an answer regarding Plaintiff’s surviving Eighth
Amendment claim of excessive force. See id.
recommendations.

The parties did not file any objections to these

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 18, 2013 ReportRecommendation and Order for clear error and manifest injustice; and, finding none, the Court
hereby
ORDERS that Magistrate Judge Treece’s September 18, 2013 Report-Recommendation
and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant’s motion for partial dismissal is GRANTED; and Plaintiff’s
Eighth amendment claim for sexual assault and any state tort claims are DISMISSED, and the
Court further
ORDERS that Defendant Prindle shall file an answer to Plaintiff’s Eighth Amendment
claim of excessive force within ten (10) days of the date of this Order; and the Court further
ORDERS that this matter is referred to Magistrate Judge Treece for all further pretrial
matters; 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: October 18, 2013
Syracuse, New York

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