Flemming v. Fischer et al

Filing 34

DECISION and ORDER: ORDERED that 31 Report and Recommendation is accepted and adopted in all respects. ORDERED that 23 Motion to Dismiss for Failure to State a Claim is granted. Defendants Duvall, Smith, Adam, Barr, Finnozzo, and Wilson ar e DISMISSED from this action. Plaintiff is granted leave to amend his claim that defendant Wilson purposefully withheld permission for him to use a walking cane. If he wishes to do so, he must file an amended complaint within thirty (30) days of t he date of this Decision and Order complying with the guidelines set forth in the Report-Recommendation and setting out any wrongful conduct by defendant Wilson. In the event plaintiff does not file an amended complaint within thirty (30) days of the date of this Decision and Order setting forth a claim against defendant Wilson, the complaint will be DISMISSED without further order. Signed by Judge David N. Hurd on 9/29/14. {order served certified mail/return receipt on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------WOODROW FLEMMING,
Plaintiff,
No. 9:13-CV-0816
(DNH/RFT)

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NANCY SMITH, Nurse Administrator, Upstate
Correctional Facility; PAUL M. DUVALL, 11 Block
Sgt., Upstate Correctional Facility; EDMUND BARR,
C.O., Upstate Correctional Facility; JOHN J. FINNOZZO;
GERALDINE WILSON, Nurse, Upstate Correctional
Facility; and RICHARD ADAM, Med. Doctor, Upstate
Correctional Facility,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

WOODROW FLEMMING
Plaintiff, Pro Se
P.O. Box 146
New York, NY 10039
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendant
The Capitol
Albany, NY 12224

ADRIENNE J. KERWIN, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge

DECISION and ORDER
Pro se plaintiff Woodrow Flemming brought this civil rights action pursuant to 42
U.S.C. § 1983. On August 20, 2014, the Honorable Randolph F. Treece, United States
Magistrate Judge, advised by Report-Recommendation that defendants' motion to dismiss be

granted and that defendants Duvall, Smith, Adam, Barr, and Finnozzo be dismissed from this
action. Magistrate Judge Treece also recommended that plaintiff be granted leave to amend
his claim that defendant Wilson purposefully withheld permission for him to use a walking
cane. Plaintiff timely filed objections to the Report-Recommendation.
Based upon a de novo review of the portions of the Report-Recommendation to which
plaintiff objected, the Report-Recommendation is accepted and adopted in all respects. See
28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. Defendants' motion to dismiss is GRANTED;
2. Defendants Duvall, Smith, Adam, Barr, Finnozzo, and Wilson are DISMISSED
from this action;
3. Plaintiff is granted leave to amend his claim that defendant Wilson purposefully
withheld permission for him to use a walking cane. If he wishes to do so, he must file an
amended complaint within thirty (30) days of the date of this Decision and Order
complying with the guidelines set forth in the Report-Recommendation and setting out any
wrongful conduct by defendant Wilson;
4. In the event plaintiff does not file an amended complaint within thirty (30) days of
the date of this Decision and Order setting forth a claim against defendant Wilson, the
complaint will be DISMISSED without further order; and
5. The Clerk is directed to serve a copy of this Decision and Order upon plaintiff in
accordance with the Local Rules and close the file.
IT IS SO ORDERED.
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Dated: September 29, 2014
Utica, New York.

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