Robinson v. Taylor et al

Filing 53

ORDER adopting 52 Report and Recommendations and granting in part and denying in part 37 Motion to Dismiss for Failure to State a Claim. Defendants' motion to dismiss (Dkt. No. 37 ) is GRANTED as to Plaintiff's Eighth Amendment med ical indifference claim against Defendant C.O. Leon Renaud and DENIED in all other respects. Plaintiff is granted leave to file an amended complaint within thirty (30) days of the date of this Order; if Plaintiff fails to file an amended complaint w ithin thirty (30) days of the date of this Order, the Eighth Amendment medical indifference claim against Defendant Renaud will be dismissed and the complaint will otherwise proceed as filed. Signed by Judge Brenda K. Sannes on 9/19/17. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
RENDELL ROBINSON,
Plaintiff,
v.

9:16-CV-0285 (BKS/DJS)

JAMES TAYLOR, et al.,
Defendants.
________________________________________________
Appearances:
Rendell Robinson
07-A-6175
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541
Plaintiff, pro se
Richard Lombardo, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Rendell Robinson, a New York State inmate, commenced this civil rights action
asserting claims under 42 U.S.C. § 1983 arising out of his incarceration at Great Meadow
Correctional Facility. (Dkt. No. 1). On January 4, 2017, Defendants filed a motion to dismiss
under Fed. R. Civ. P. 12(c). (Dkt. No. 37). Plaintiff elected not to respond to the motion. (Dkt.
No. 40). This matter was assigned to United States Magistrate Judge Daniel J. Stewart who, on
August 24, 2017, issued a Report-Recommendation and Order recommending that Defendants’

motion to dismiss be granted in part as to Plaintiff’s Eighth Amendment medical indifference
claim against Defendant C.O. Leon Renaud and denied in all other respects. (Dkt. No. 52).
Magistrate Judge Stewart advised the parties that under 28 U.S.C. § 636(b)(1), they had fourteen
days within which to file written objections to the report, and that the failure to object to the
report within fourteen days would preclude appellate review. (Dkt. No. 52, at 16).
No objections to the Report-Recommendation were filed.
As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear
error and found none, the Report-Recommendation is adopted in its entirety.
Further, in recognition of Plaintiff’s status as a pro se litigant, leave to file an amended
complaint within thirty (30) days of the date of this Order is granted. Any such amended
complaint will replace the existing complaint, and must be a wholly integrated and complete
pleading that does not rely upon or incorporate by reference any pleading or document
previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d
Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original,
and renders it of no legal effect.” (quotation marks omitted)). If Plaintiff fails to file an amended
complaint within thirty days, the Eighth Amendment medical indifference claim against
Defendant Renaud will be dismissed and the complaint will otherwise proceed as filed.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 52) is ADOPTED in its
entirety; and it is further

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ORDERED that Defendants’ motion to dismiss (Dkt. No. 37) is GRANTED as to
Plaintiff’s Eighth Amendment medical indifference claim against Defendant C.O. Leon Renaud
and DENIED in all other respects; and it is further
ORDERED that Plaintiff is granted leave to file an amended complaint within thirty (30)
days of the date of this Order; and it is further
ORDERED that if Plaintiff fails to file an amended complaint within thirty (30) days of
the date of this Order, the Eighth Amendment medical indifference claim against Defendant
Renaud will be dismissed and the complaint will otherwise proceed as filed; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with
the Local Rules.
IT IS SO ORDERED.
Dated: September 19, 2017

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