Nickelson v. Fischer et al

Filing 44

DECISION AND ORDER: ORDERED that Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 42 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion to dismiss for failure to state a claim (Dkt. No. 20 ) is DENIED. ORDERED that (1) Plaintiff's motion to amend his Complaint (Dkt. No. 35 ) is GRANTED for the sole purpose of substituting Anthony J. Annucci, Carl J. Koenigsmann, and Theresa Knapp-David as Defendants in their official capacities, and (2) Annu cci, Koenigsmann, and Knapp-David (in their official capacities) be deemed to have stepped into the shoes of Fischer, Wright, and Carver (respectively) for purposes of Defendants' motion to dismiss. The Clerk of the Court is directed to substit ute the above-named parties on the docket. ORDERED that Defendants file an answer to the Plaintiff's Complaint, as amended, within 14 days of the date of this Decision & Order pursuant to Fed.R.Civ.P. Rule 12(a)(4)(a), and this case is referred back to Magistrate Judge Dancks for the setting of pretrial scheduling deadlines. Signed by Chief Judge Glenn T. Suddaby on 3/22/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
DARRELL NICKELSON,
Plaintiff,
9:15-CV-0227
(GTS/TWD)

v.
BRIAN FISCHER, Comm’r, New York State Dep’t of
Corr. and Cmty. Supervision; JOYCE CARVER, Dir. of
Classification and Movement; and LESTER WRIGHT,
Assistant Deputy Comm’r and Chief Med. Dir.,
Defendants.
_______________________________________________
APPEARANCES:

OF COUNSEL:

DARRELL NICKELSON, 14-A-1966
Plaintiff, Pro Se
Franklin Correctional Facility
P.O. Box 10
Malone, New York 12953
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

RYAN W. HICKEY, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Darrell Nickelson
(“Plaintiff”) against the three above-captioned employees of the New York State Department of
Corrections and Community Supervision (“Defendants”) pursuant to Title II of the Americans
with Disabilities Act of 1990, 42 U.S.C. §§ 12131, et seq. (“ADA”) and 42 U.S.C. § 1983, are
the following: (1) Defendants’ motion to dismiss Plaintiff’s Complaint for failure to state a claim

upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6); (2) Plaintiff’s motion to
amend his Complaint pursuant to Fed. R. Civ. P. 15(a)(2); and (3) United States Magistrate
Judge Thérèse Wiley Dancks’ Report-Recommendation recommending that Defendants' motion
be denied and that Plaintiff’s motion be granted. (Dkt. Nos. 20, 35, 42.) None of the parties
have filed objections to the Report-Recommendation, and the deadline by which to do so has
expired. (See generally Docket Sheet.) After carefully reviewing the relevant papers herein,
including Magistrate Judge Dancks’ thorough Report-Recommendation, the Court can find no
clear-error in the Report-Recommendation.1 Magistrate Judge Dancks employed the proper
standards, accurately recited the facts, and reasonably applied the law to those facts. As a result,
the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth
therein; Defendants’ motion is denied; and Plaintiff is granted leave to amend his Complaint in
accordance with the terms of the Report-Recommendation.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 42) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion to dismiss for failure to state a claim (Dkt. No. 20)
is DENIED; and it is further

1

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).

2

ORDERED that (1) Plaintiff’s motion to amend his Complaint (Dkt. No. 35) is
GRANTED for the sole purpose of substituting Anthony J. Annucci, Carl J. Koenigsmann, and
Theresa Knapp-David as Defendants in their official capacities, and (2) Annucci, Koenigsmann,
and Knapp-David (in their official capacities) be deemed to have stepped into the shoes of
Fischer, Wright, and Carver (respectively) for purposes of Defendants’ motion to dismiss. The
Clerk of the Court is directed to substitute the above-named parties on the docket; and it is
further
ORDERED that Defendants file an answer to the Plaintiff's Complaint, as amended,
within 14 days of the date of this Decision & Order pursuant to Fed.R.Civ.P. Rule 12(a)(4)(a),
and this case is referred back to Magistrate Judge Dancks for the setting of pretrial scheduling
deadlines.
Dated: March 22, 2016
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

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