Telesford v. Annucci et al

Filing 25

ORDER adopting 24 Report and Recommendations and granting 19 Motion to Dismiss for Failure to State a Claim. Plaintiff's complaint is dismissed, with leave to amend only with respect to Plaintiff's Eighth Amendment cause of action. A ny amended complaint is to be filed within 30 days of the date of this Order. If no amended complaint is filed within 30 days, the Clerk is directed to close this action. Signed by Judge Brenda K. Sannes on 8/18/17. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
MARCUS TELESFORD,
Plaintiff,
v.

9:16-CV-0793 (BKS/DEP)

ANTHONY J. ANNUCCI, Acting
Commissioner, et al.,
Defendants.
________________________________________________
Appearances:
Marcus Telesford
02-A-0506
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902
Plaintiff, pro se
Christopher J. Hummel, 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 Marcus Telesford, commenced this pro se civil rights action asserting claims
under 42 U.S.C. § 1983 arising out of his incarceration at Upstate Correctional Facility. Dkt. No.
1. On October 21, 2016, Defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief may be granted. Dkt. No. 19. Plaintiff filed a response
on November 10, 2016. Dkt. No. 23. This matter was assigned to United States Magistrate

Judge David E. Peebles who, on July 26, 2017, issued a Report and Recommendation
recommending that Defendants’ motion to dismiss be granted and that plaintiff’s complaint be
dismissed, with leave to amend only with respect to his Eighth Amendment cause of action. Dkt.
No. 24. Magistrate Judge Peebles 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. 24, p. 20. No
objections to the Report-Recommendation have been filed.
As no objections to the Report and Recommendation have been filed, and the time for
filing objections has expired, the Court reviews the Report and 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 and
Recommendation for clear error and found none, it is adopted in its entirety.
For these reasons, it is
ORDERED that the Report and Recommendation (Dkt. No. 24) is ADOPTED in its
entirety; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 19) is GRANTED and
Plaintiff’s complaint is DISMISSED, with leave to amend only with respect to Plaintiff’s Eighth
Amendment cause of action; and it is further
ORDERED that any amended complaint regarding Plaintiff’s Eighth Amendment cause
of action is to be filed within thirty (30) days of the date of this Order; and it is further
ORDERED that if no amended complaint is filed within the thirty (30) days, the Clerk is
directed to close this action; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with

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the Local Rules.
IT IS SO ORDERED.
Dated: August 18, 2017

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