Scott v. Frederick et al

Filing 31

DECISION and ORDER: ORDERED that 25 Report and Recommendation is adopted. ORDERED that 15 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part as follows: the motion is GRANTED as to Plaintiff's claims against Defendants Aiken, Facteau and Nicholas and each of these Defendants are DISMISSED from the action; the motion is GRANTED without prejudice as to Plaintiff's claim against Defendant Prack; the motion is GRANTED with respect to Plainti ff's claims that Defendant Frederick violated his due process rights by failing to provide subsequent notice of the re-hearing, failing to record the entire hearing, and improperly re-starting the hearing; and the motion is DENIED with respect to Plaintiff's claims that Defendant Frederick denied him the opportunity to present a defense and for being biased. Plaintiff may file an amended complaint within 30 days of the date of this Order. Signed by Senior Judge Thomas J. McAvoy on 1/8/15. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
HAROLD J. SCOTT,
Plaintiff,
v.

9:13-CV-605

PETER FREDERICK, CAPTAIN J.
FACTEAU, MRS. EDNA AIKEN, RANDY
NICHOLS, and ALBERT PRACK,
Defendants.
________________________________________

DECISION & ORDER

Thomas J. McAvoy, Senior District Judge.
This pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of
Plaintiff’s due process rights under the Fourteenth Amendment of the United States
Constitution during a prison disciplinary hearing, was referred to the Honorable Randolph
F. Treece, United States Magistrate Judge, for a Report-Recommendation pursuant to 28
U.S.C. § 636(b) and Local Rule 72.3(c).
In the Report-Recommendation, dated August 28, 2014, Magistrate Judge Treece
recommends that Defendants’ motion to dismiss for failure to state a claim upon which
relief can be granted, dkt. # 15, be granted in part and denied in part. Magistrate Judge
Treece recommends that the motion be: granted with respect to Defendants Edna Aiken,
Captain J. Facteau, and Randy Nichols; granted without prejudice with respect to
Defendant Albert Prack; granted with respect to Plaintiff’s claims that Defendant Peter
Frederick violated his due process rights by failing to provide sufficient notice of the
1

disciplinary re-hearing, failing to record the entire hearing, and improperly re-starting the
hearing; and denied with respect to Plaintiff’s claims that Defendant Frederick denied him
the opportunity to present a defense and for being biased.
Plaintiff filed a timely objection to the Report-Recommendation pursuant to 28
U.S.C. § 636(b)(1). When objections to a magistrate judge’s Report-Recommendation are
lodged, the Court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which the objection is made.” See 28
U.S.C. §636(b)(1). After such a review, the Court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the magistrate judge with
instructions.” Id.
Having reviewed the record de novo and having considered the issues raised in the
Plaintiff’s objections, this Court has determined to accept the recommendation of
Magistrate Judge Treece for the reasons stated in the Report-Recommendation.
It is therefore ordered that:
(1) Plaintiff’s Objections, dkt. # 30, to the Report-Recommendation of Magistrate
Judge Treece, dkt. # 25, are hereby OVERRULED;
(2) The Report-Recommendation is hereby ADOPTED;
(3) The Defendants’ motion to dismiss, dkt. # 15, is hereby GRANTED in part and
DENIED in part, as follows:
a. the motion is GRANTED as to Plaintiff’s claims against Defendants Aiken,
Facteau and Nicholas and each of these Defendants are DISMISSED from
the action;
b. the motion is GRANTED without prejudice as to Plaintiff’s claim against
2

Defendant Prack;
c. the motion is GRANTED with respect to Plaintiff’s claims that Defendant
Frederick violated his due process rights by failing to provide subsequent
notice of the re-hearing, failing to record the entire hearing, and improperly
re-starting the hearing; and
d. the motion is DENIED with respect to Plaintiff’s claims that Defendant
Frederick denied him the opportunity to present a defense and for being
biased.
Plaintiff may file an amended complaint within 30 days of the date of this Order.
IT IS SO ORDERED.

Dated: January 8, 2015

3