Povoski v. Lacy et al

Filing 107

ORDER granting in part and denying in part 65 Motion to Dismiss for Failure to State a Claim; adopting 105 Report and Recommendations. The Second Amended Complaint (Dkt. No. 106 ) is ACCEPTED as filed except with respect to those claims Magist rate Judge Hummel denied amendment. Plaintiff's request for injunctive relief in the form of the expungement of his institutional and parole records regarding the December 6, 2010 disciplinary hearing, as set forth in the Second Amended Complaint (Dkt. No. 106 ) is DISMISSED. Signed by Judge Brenda K. Sannes on 3/9/16 (served on plaintiff via regular mail). (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
FRANK J. POVOSKI, JR.,
Plaintiff,
v.

9:14-cv-0097 (BKS/CFH)

STEVEN LACY, Correction Captain, et al.,
Defendants.
______________________________________________________
APPEARANCES:
Frank J. Povoski, Jr.
05-B-2531
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
Pro se Plaintiff
Hon. Eric T. Schneiderman
New York State Attorney General
Ryan E. Manley, Esq., Assistant Attorney General
The Capitol
Albany, NY 12224
For Defendants

Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Frank J. Povoski, Jr., a New York State inmate, commenced this civil rights
action under 42 U.S.C. § 1983. Dkt. Nos. 1 and 42. Plaintiff alleges that defendants violated his
constitutional rights under the First, Eighth, and Fourteenth Amendments. See Dkt. No. 42. On
August 20, 2015 Defendants filed a Partial Motion to Dismiss the Amended Complaint. Dkt. No.

65. On December 28, 2015, Plaintiff filed a response to the motion and moved to amend the
complaint. Dkt. No. 103.
On February 8, 2016, United States Magistrate Judge Christian F. Hummel issued a
Report-Recommendation and Order recommending that defendants’ motion to dismiss pursuant
to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 65) be granted as to plaintiff’s request for injunctive relief
in the form of the expungement of his institutional and parole records regarding the
December 6, 2010 disciplinary hearing; and denied as to (1) plaintiff’s request for injunctive
relief in the form of the return of two legal research notebooks, (2) plaintiff’s excessive force
claims, and (3) plaintiff’s conspiracy claims. Dkt. No. 105, p. 25. Magistrate Judge Hummel also
Ordered that plaintiff's motion to amend (Dkt. No. 103) be granted in part and denied in part; and
that the amended complaint attached to plaintiff’s motion (Dkt. No. 103-1) be accepted for filing
and serve as the operative complaint in this proceeding. Dkt. No. 105.
Magistrate Judge Hummel advised the parties that, under 28 U.S.C. § 636(b)(1), failure to
file written objections to the Report-Recommendation within fourteen days “will preclude
appellate review.” Dkt. No. 105, p. 25. No objections to the Report-Recommendation have been
filed. On February 8, 2016, plaintiff filed the second amended complaint. Dkt. No. 106. As it is
identical to the proposed second amended complaint appended to the motion to amend that
Magistrate Judge Hummel granted in part and denied in part, it is accepted as filed, except with
respect to those claims Magistrate Judge Hummel denied amendment. 1
As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
1

Magistrate Judge Hummel denied plaintiff’s motion to amend to the extent he sought to add: a
denial of due process claim against Capt. Lacy, Corrections Counselor Rankin, and DSH Prack;
and a denial of access to the courts claim against C.O. Mahuta, C.O. Kelly, C.O. Crusie, and Stg.
Tamer. Dkt. No. 105, pp. 23-24.
2

Glaspie v. N.Y.C. Dep’t of Corr., No. 10 CV 00188(GBD)(JCF), 2010 WL 4967844, at *1, 2010
U.S. Dist. LEXIS 131629, at *2-3 (S.D.N.Y. Nov. 30, 2010) (explaining that when no objections
to report and recommendation are made, “the Court may adopt [it] if there is ‘no clear error on
the face of the record.’”) (quoting Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253
(S.D.N.Y. 2005)). Having reviewed the Report-Recommendation and having found no clear
error, it is hereby
ORDERED that the Second Amended Complaint (Dkt. No. 106) is ACCEPTED as filed
except with respect to those claims Magistrate Judge Hummel denied amendment; and it is
ORDERED that the Report-Recommendation (Dkt. No. 105) is ADOPTED in its
entirety; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 65) is GRANTED as to
plaintiff’s request for injunctive relief in the form of the expungement of his institutional and
parole records regarding the December 6, 2010 disciplinary hearing; and it is further
ORDERED that plaintiff’s request for injunctive relief in the form of the expungement
of his institutional and parole records regarding the December 6, 2010 disciplinary hearing, as set
forth in the Second Amended Complaint (Dkt. No. 106) is DISMISSED; and it is further
ORDERED that Defendant’s motion to dismiss (Dkt. No. 65) is otherwise DENIED in
its entirety; and it is further
ORDERED that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 9, 2016

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