Smith v. Annucci et al

Filing 24

ORDER: ORDERS that 23 Magistrate Judge Baxter's November 28, 2016 Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein. ORDERS that Defendants' motion to dismiss Plaintiff's complaint for failure to state a claim, see Dkt. No. 18 , is GRANTED. ORDERS that Plaintiff's complaint is DISMISSED without prejudice to Plaintiff filing a proper motion to amend his complaint, together with a proposed amended complaint consistent with Magistrate Judge Baxter's November 28, 2016 Report-Recommendation within forty-five (45) days of the filing date of this Order.Signed by Senior Judge Frederick J. Scullin, Jr on 12/20/16. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________________
RYAN A. SMITH,
Plaintiff,
v.

9:16-CV-602
(FJS/ATB)

ANTHONY J. ANNUCCI, Acting Commissioner
of Corrections; MICHAEL VELEZ, Grievance
Commissioner; and MICHAEL SHEAHAM,
Superintendent, Southport Correctional Facility,
Defendants.
_________________________________________________
APPEARANCES

OF COUNSEL

RYAN A. SMITH
14-A-0536
Downstate Correctional Facility
Box F
Fishkill, New York 12524
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

CHRISTOPHER J. HUMMEL, AAG

SCULLIN, Senior Judge
ORDER
On November 28, 2016, Magistrate Judge Baxter issued a Report-Recommendation, in
which he recommended that this Court grant Defendants' motion to dismiss for failure to state a
claim and dismiss the complaint without prejudice "to [P]laintiff filing a proper motion to amend,
together with a proposed amended complaint [consistent with the Report-Recommendation] within

forty-five (45) days of the date of the [O]rder approving [his] Report-Recommendation." See Dkt.
No. 23 at 14. The parties did not file any objections to the Report-Recommendation within the
required time frame.
When a party does not object to a magistrate judge's report-recommendation, the court
reviews that report-recommendation for clear error or manifest injustice. See Linares v. Mahunik,
No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote
omitted). After conducting its review, "the Court may 'accept, reject, or modify, in whole or in part,
the . . . recommendations made by the magistrate judge." Id. (quoting 28 U.S.C. § 636(b)(1)(C)).
The Court has reviewed Magistrate Judge Baxter's November 28, 2016 ReportRecommendation for clear error and manifest injustice; and, finding none, the Court hereby
ORDERS that Magistrate Judge Baxter's November 28, 2016 Report-Recommendation is
ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss Plaintiff's complaint for failure to state a
claim, see Dkt. No. 18, is GRANTED; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED without prejudice to Plaintiff filing a
proper motion to amend his complaint, together with a proposed amended complaint consistent with
Magistrate Judge Baxter's November 28, 2016 Report-Recommendation within forty-five (45) days
of the filing date of this Order; and the Court further

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ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: December 20, 2016
Syracuse, New York

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