Flemming v. Adams et al

Filing 41

DECISION AND ORDER: ORDERED that 37 Report and Recommendation is accepted in whole. ORDERED that Defendants Matthew J. King and David Bilow's motion for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 32 ) of plai ntiff Woodrow Flemming's complaint (ECF No. 1 ) is: (a) GRANTED as to the Eighth Amendment excessive force claims against defendants King and Bilow; and (b) DENIED as to the First Amendment retaliation claims against defendants King and Bilow.Signed by Judge David N. Hurd on 9/21/16.{order served via regular mail on plaintiff} (nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------WOODROW FLEMMING,
Plaintiff,
-v-

9:14-CV-0316
(DNH/DEP)

MATTHEW J. KING; DAVID BILOW,
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
The Capital
Albany, NY 12224-0341

ORIANNA CARRAVETTA, ESQ.
Assistant 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 June 20, 2016, the Honorable Christian F. Hummel, United States Magistrate Judge,
advised by Report-Recommendation that defendants' motion for summary judgment be granted
in part and denied in part. See ECF No. 37. Defendants have filed timely objections and plaintiff
has filed a response. See ECF Nos. 39, 40.

Based upon a de novo review of the Report-Recommendation, the ReportRecommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).
Therefore, it is ORDERED that:
1. Defendants Matthew J. King and David Bilow’s motion for dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(6) (ECF No. 32) of plaintiff Woodrow Flemming’s complaint
(ECF No. 1) is:
(a) GRANTED as to the Eighth Amendment excessive force claims against defendants
King and Bilow; and
(b) DENIED as to the First Amendment retaliation claims against defendants King and
Bilow; and
2. The Clerk serve a copy of this Decision and Order upon plaintiff in accordance with
the Local Rules.
IT IS SO ORDERED.

Dated: September 21, 2016
Utica, New York

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