Waters v. Melendez et al

Filing 68

DECISION AND ORDER: ORDERED that the Report-Recommendation, dkt. # 63 , is hereby ADOPTED. The Defendants' motion to dismiss, dkt. # 53 , is hereby GRANTED IN PART and DENIED IN PART, as follows: 1. The motion to dismiss pursuant to Fed. R. Civ. P. 12(c) is GRANTED with respect to Defendants Gutwein and Prack and DENIED with respect to Defendants Melendez, Muschett, Bedard, Lamphere, and Rivera; and 2. The motion to dismiss pursuant to Fed. R. Civ. P. (12)(b)(6) is hereby GRANTED wi th respect to Defendants Bedard, Lamphere, and Rivera. Plaintiff's motion for default judgment against Defendant Muschett, dkt. # 66 , is hereby DENIED. Signed by Senior Judge Thomas J. McAvoy on 3/13/17. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

KEITH WATERS,
Plaintiff,
v.

9:15-cv-805
(TJM/CFH)

SGT. A. MELENDEZ, et al.,
Defendants.

Thomas J. McAvoy, SR. U.S.D.J.

DECISION and ORDER
The Court referred this action alleging constitutional violations by prison officers,
brought pursuant to 42 U.S.C. § 1983, to the Hon. Christian F. Hum mel, 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. Plaintiff alleges that
the Defendants are liable to him for violating his due process rights in a disciplinary
proceeding. The Report-Recommendation, dated January 31, 2017, recommended that
the Court deny Defendants’ motion to dismiss the Complaint as duplicative of another
action, and that the motion of certain Defendants to dismiss the action for failure to state a
claim should be granted.
Neither side filed objections to the Report-Recommendation and the time for filing
such objections has passed. After examining the record, this Court has determined that
the Report-Recommendation is not subject to attack for plain error or manifest injustice
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and the Court will adopt the Report-Recommendation.
Subsequent to the filing of the Report-Recommendation, Plaintiff filed a motion for
default judgment against Defendant Cecil Muschett. See dkt. # 66. Plaintif f contends that
Muschett has been served the Amended Complaint, has failed to answer, and has thus
defaulted. The Court notes that Defendant Muschett joined in the motion to dismiss
presently before the Court. See dkt. # 53. Federal Rule of Civil Procedure 12(a)(1)(A)(i)
mandates that a Defendant serve a responsive pleading “within 21 days after being served
with the summons and complaint.” FED. R. CIV. P. 12(a)(1)(A)(i). The docket establishes
that the Court extended the time to answer the Amended Complaint for Defendant
Muschett until June 30, 2016, and that Muschett f iled a motion to dismiss on June 21,
2016. See dkt. #s 48, 53. Muschett theref ore served a responsive pleading within the
time mandated by the Court and default is not available. Moreover, as Mushett filed a
motion to dismiss which was denied, his “responsive pleading must be served within 14
days after notice of the court’s action[.]” F ED. R. CIV. P. 12(a)(4)(A). Plaintiff’s motion for
default judgment will be denied.
Accordingly:
The Report-Recommendation, dkt. # 63, is hereby ADOPTED. The Defendants’
motion to dismiss, dkt. # 53, is hereby GRANTED IN PART and DENIED IN PART, as
follows:
1. The motion to dismiss pursuant to Fed. R. Civ. P. 12(c) is GRANTED with
respect to Defendants Gutwein and Prack and DENIED with respect to Defendants
Melendez, Muschett, Bedard, Lamphere, and Rivera; and
2. The motion to dismiss pursuant to Fed. R. Civ. P. (12)(b)(6) is hereby
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GRANTED with respect to Defendants Bedard, Lamphere, and Rivera.
Plaintiff’s motion for default judgment against Defendant Muschett, dkt. # 66, is hereby
DENIED.
IT IS SO ORDERED

Dated:March 13, 2017

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