Barnes v. Annucci et al

Filing 75

ORDER: ORDERED that the Report and Recommendation (Dkt. No. 70 ) is ADOPTED in its entirety. ORDERED that defendants' motion to dismiss (Dkt. No. 61 ) is GRANTED with respect to the following causes of action and that they are DISMISSED wi thout prejudice to plaintiff's filing of his second amended complaint, which has already been filed (Dkt. No. 72) that cures the deficiencies identified in the Report and Recommendation: (1) plaintiff's First Amendment free speech claims asserted against defendants McKeighan, Frazier, Whitford, Maxwell, and Borowski; (2) plaintiff's First Amendment access to courts claim asserted against defendants Bell, Narkiewicz, and West; (3) plaintiff's Fourteenth Amendment due proc ess claims asserted against defendants Frazier, Ollies, Mahuta, Hanson, Maxwell, Whitford, and Borowski; and (4) plaintiff's supervisor liability claims asserted against defendants Annucci and Venetozzi. ORDERED that defendants Frazier, Wh itford, Maxwell, Borowski, Bell, Narkiewicz, West, Annucci, and Venetozzi are DISMISSED from the action. ORDERED that, if plaintiff's second amended complaint does not cure the deficiencies identified in the Report and Recommendation the f ollowing causes of action survive defendants' motion and proceed to discovery: (1) plaintiff's First Amendment free speech claims asserted against defendants Ollies and Mahuta; (2) plaintiff's First Amendment free exercise claim asserted against defendant Mahuta; (3) plaintiff's Fourteenth Amendment due process claims asserted against defendants Coveny and McKeighan. Signed by Senior Judge Gary L. Sharpe on 9/1/17. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ARRELLO BARNES,
Plaintiff,

9:15-cv-777
(GLS/DEP)

v.
ANTHONY ANNUCCI, et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF:
ARRELLO BARNES
00-A-0597
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, New York 12589
FOR DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, New York 12224

COLLEEN G. GALLIGAN
Assistant Attorney General

Gary L. Sharpe
Senior District Judge
ORDER
The above-captioned matter comes to this court following a Report
and Recommendation by Magistrate Judge David E. Peebles, duly filed on

July 14, 2017. (Dkt. No. 70.) Following fourteen days from the service
thereof, the Clerk has sent the file, including any and all objections filed by
the parties herein.
No objections1 having been filed, and the court having reviewed the
Report-Recommendation and Order for clear error, it is hereby
ORDERED that the Report and Recommendation (Dkt. No. 70) is
ADOPTED in its entirety; and it is further
ORDERED that defendants’ motion to dismiss (Dkt. No. 61) is
GRANTED with respect to the following causes of action and that they are
DISMISSED without prejudice to plaintiff’s filing of his second amended
complaint, which has already been filed (Dkt. No. 72) that cures the
deficiencies identified in the Report and Recommendation: (1) plaintiff’s
First Amendment free speech claims asserted against defendants
McKeighan, Frazier, Whitford, Maxwell, and Borowski; (2) plaintiff’s First
Amendment access to courts claim asserted against defendants Bell,
Narkiewicz, and West; (3) plaintiff’s Fourteenth Amendment due process

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On July 21, 2017, plaintiff filed a letter “object[ing]” to the Report and
Recommendation. (Dkt. No. 71.) However, plaintiff does not cite any basis or arguments for
his “objection.” (Id.) Furthermore, on July 24, 2017, plaintiff filed his second amended. (Dkt.
No. 72.)

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claims asserted against defendants Frazier, Ollies, Mahuta, Hanson,
Maxwell, Whitford, and Borowski; and (4) plaintiff’s supervisor liability
claims asserted against defendants Annucci and Venetozzi; and it is
further
ORDERED that defendants Frazier, Whitford, Maxwell, Borowski,
Bell, Narkiewicz, West, Annucci, and Venetozzi are DISMISSED from the
action; and it is further
ORDERED that, if plaintiff’s second amended complaint does not
cure the deficiencies identified in the Report and Recommendation the
following causes of action survive defendants’ motion and proceed to
discovery: (1) plaintiff’s First Amendment free speech claims asserted
against defendants Ollies and Mahuta; (2) plaintiff’s First Amendment free
exercise claim asserted against defendant Mahuta; (3) plaintiff’s
Fourteenth Amendment due process claims asserted against defendants
Coveny and McKeighan; and it is further
ORDERED that the Clerk provide a copy of this Order to the parties
in accordance with the Local Rules of Practice.
IT IS SO ORDERED.

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September 1, 2017
Albany, New York

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