Wallace v. McArdle et al

Filing 33

DECISION AND ORDER: ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 28 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendant's motion to dismiss (Dkt. No. 23 ) is DENIED. Signed by Judge Glenn T. Suddaby on 1/5/15. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
JACOLBY WALLACE, a/k/a Jocolby Wallace,
Plaintiff,
9:13-CV-1208
(GTS/CFH)

v.
C.O. FISHER, Watertown Corr. Facility,
Defendant.
_______________________________________
APPEARANCES:

OF COUNSEL:

JACOLBY WALLACE, 12-B-0802
Plaintiff, Pro Se
Mid-State Correctional Facility
P.O. Box 2500
Marcy, New York 13403
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendant
The Capitol
Albany, New York 12224

CATHY Y. SHEEHAN, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Jacolby
Wallace (“Plaintiff”) against the above-captioned New York State correctional officer
(“Defendant”) asserting claims of excessive force and retaliation, are (1) Defendant’s motion to
dismiss Plaintiff’s Amended Complaint for failure to state a claim, and (2) United States
Magistrate Judge Christian F. Hummel’s Report-Recommendation recommending that
Defendant’s motion be denied. (Dkt. Nos. 23, 28.) Neither of the parties has filed an objection

to the Report-Recommendation, and the deadline by which to do so has expired. (See generally
Docket Sheet.)
When no objection is made to a report-recommendation, the Court subjects that reportrecommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes:
1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.” Id.:
see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995)
(Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which
no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks omitted).
Here, based upon a careful review of this matter, the Court can find no clear error with
Magistrate Judge Hummel’s Report-Recommendation. (Dkt. No. 5.) Magistrate Judge Hummel
employed the proper standards, accurately recited the facts, and reasonably applied the law to
those facts. (Id.) As a result, the Report-Recommendation is accepted and adopted in its entirety
for the reasons stated therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 28) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant’s motion to dismiss (Dkt. No. 23) is DENIED.
Dated: January 5 , 2015
Syracuse, New York

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