Bacon v. Langford et al

Filing 33

DECISION and ORDER: Based upon a de novo review of the portions of the 28 Report-Recommendation to which plaintiff objected, the Report-Recommendation is accepted and adopted in all respects and 24 Motion to Dismiss for Failure to State a Cl aim is granted. ORDERED that: 1. The second amended complaint is DISMISSED in its entirety as against defendant Mr. P. Shipman, S.I.S. Lieutenant, FCI Ray Brook; and 2. Remaining defendant Phelps is directed to contact Magistrate Judge Hummel's Chambers, if he has not already, to set a briefing schedule regarding the filing of any dispositive motions on his behalf. Signed by Judge David N. Hurd on 9/21/17. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DWAYNE BACON,
Plaintiff,
-v-

9:15-CV-1502
(DNH/CFH)

MR. PHELPS, formerly known as Phillips; and
MR. P. SHIPMAN, S.I.S. Lieutenant, FCI Ray
Brook,
Defendants.
-------------------------------APPEARANCES:
DWAYNE BACON
Plaintiff pro se
44513-007
McKean Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 8000
Bradford, PA 16701
HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
P.O. Box 7198
100 South Clinton Street
Syracuse, NY 13261

CHARLES E. ROBERTS, ESQ.
Ass't United States Attorney

DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Dwayne Bacon brought this civil rights action against the above named
federal defendants pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971). On July 6, 2017, the Honorable Christian F. Hummel,
United States Magistrate Judge, advised by Report-Recommendation that defendant
Shipman's unopposed motion to dismiss be granted and that the second amended complaint
be dismissed in its entirety as against him. Plaintiff filed timely objections to the ReportRecommendation.1
Based upon a de novo review of the portions of the Report-Recommendation to which
plaintiff objected, the Report-Recommendation is accepted and adopted in all respects. See
28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. The second amended complaint is DISMISSED in its entirety as against defendant
Mr. P. Shipman, S.I.S. Lieutenant, FCI Ray Brook; and
2. Remaining defendant Phelps is directed to contact Magistrate Judge Hummel's
Chambers, if he has not already, to set a briefing schedule regarding the filing of any
dispositive motions on his behalf.
IT IS SO ORDERED.

1

It is also noted that since the filing of the Report-Recommendation, the United States Attorney's Office
has advised that it represents defendant Phelps and that he consents to a waiver of service. That office advised
that it would be filing a motion to dismiss on behalf of Phelps which would be "largely identical" to that filed by
defendant Shipment and that the motion would likely be unopposed by plaintiff. In light of that, defense counsel
requested plaintiff advise if he consents to dismissal of the action as against defendant Phelps. Plaintiff has
indicated that he does not consent to such dismissal. Accordingly, the action will proceed against defendant
Phelps.

2

Dated: September 21, 2017
Utica, New York.

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