Gomez et al v. Tedford et al
Filing
49
DECISION AND ORDER: ORDERED that 45 Report and Recommendation is adopted. The Plaintiffs' Amended Complaint is accepted for filing as to Plaintiff Gomez's First Amendment retaliation claims against Defendants Perryman and Woodruff ; All other claims are hereby DISMISSED; Plaintiff Gonzalez is hereby DISMISSED from the action; Defendants Tedford, Cotter, and Payton are hereby DISMISSED from the action; and the stay of Defendants' deadline to answer the Amended Complaint is hereby LIFTED. Signed by Senior Judge Thomas J. McAvoy on 10/17/16. {order served via regular mail on plaintiffs}(nas, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SANTIAGO GOMEZ, and
MICHAEL GONZALEZ,
Plaintiffs,
v.
9:14-cv-1476
(TJM/DJS)
JEFFREY TEDFORD, et al.,
Defendants.
Thomas J. McAvoy, SR. U.S.D.J.
DECISION and ORDER
The Court referred this civil rights action, brought pursuant to 42 U.S.C. § 1983, to
the Hon. Daniel J. Stewart, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72.3(d) of the Local Rules of
the Northern District of New York. Plaintiffs allege that conditions at the Adirondack
Correctional Facility violated their Eighth Amendment Rights, and that the prison staff’s
conduct violated their First Amendment rights.
The Report-Recommendation, dated September 20, 2016, gave the Amended
Complaint, filed in forma pauperis, a screening to determine whether that document cured
the deficiencies identified in this Court’s initial screening pursuant to 28 U.S.C. § 1915(e).
After reviewing the Complaint, Magistrate Judge Stewart recommended that the Court
dismiss all of the claims raised by Plaintiffs except for Plaintiff Gomez’s First Amendment
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Retaliation Claims against Defendants Perryman and Woodruff. Magistrate Judge
Stewart recommends that Plaintiff Gonzalez be dismissed from the action.
Plaintiffs filed objections to the Report and Recommendation. 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 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 and adopt the recommendations
of Magistrate Judge Stewart for the reasons stated in the Report-Recommendation. The
Court notes that Plaintiff Gomez’s objections contend that the Magistrate Judge did not
properly consider Plaintiffs’ claims that their Eighth Amendment rights were violated
because electrical wiring was left exposed at the prison, endangering them. Plaintiffs do
not allege any injury from this situation, however. As the thorough ReportRecommendation explained, mere exposure to a potential hazard cannot make out an
Eighth Amendment claim.
Accordingly:
Plaintiffs’ objections to the Amended Report-Recommendation, dkt. #s 46, 48, are
hereby OVERRULED. The Report-Recommendation, dkt. # 45, is hereby adopted, as
follows:
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1. The Plaintiffs’ Amended Complaint is accepted for filing as to Plaintiff
Gomez’s First Amendment retaliation claims against Defendants Perryman and Woodruff;
2. All other claims are hereby DISMISSED;
3. Plaintiff Gonzalez is hereby DISMISSED from the action;
4. Defendants Tedford, Cotter, and Payton are hereby DISMISSED from the
action; and
5. The stay of Defendants’ deadline to answer the Amended Complaint is
hereby LIFTED.
IT IS SO ORDERED
Dated:October 17, 2016
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