Nix v. State of New York et al

Filing 44

ORDER: ORDERS that Magistrate Judge Dancks' August 4, 2017 Report and Recommendation, see Dkt. No. 43 , is ACCEPTED in its entirety for the reasons stated therein. ORDERS that Defendant Norton and Lester's motion, see Dkt. No. 32 , is GRANTED. ORDERS that Plaintiff's claims against Defendants Norton and Lester alleging that they failed to intervene and protect Plaintiff from inmate Sanders' assault are DISMISSED without prejudice. ORDERS that Plaintiff's cl aims against Defendants Norton and Lester alleging that they were deliberately indifferent to Plaintiff's medical needs are DISMISSED without prejudice. ORDERS that Plaintiff's claims against Defendants Norton and Lester alleging verbal harassment and threats are DISMISSED with prejudice. ORDERS that the following claims against all Defendants are DISMISSED with prejudice sua sponte: (1) § 1983 official capacity claims; (2) assault and battery claims; (3) claims under the Fifth and Sixth Amendments; and (4) claims under 18 U.S.C. § 241. ORDERS that the following claims against all Defendants are DISMISSED without prejudice sua sponte: (1) claims under the Fourth Amendment; (2) conspiracy claims under 42 U.S.C . § 1983 and 42 U.S.C. § 1985; and (3) claims under 42 U.S.C. § 1981. ORDERS that this matter is referred to Magistrate Judge Dancks for all further pretrial matters. Signed by Senior Judge Frederick J. Scullin, Jr. on 8/21/17. (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________________
EVAN NIX,
Plaintiff,
v.

9:16-CV-828
(FJS/TWD)

JOHN DOE 1, Correction Officer; JANE DOE 2,
Nurse, Washington Correctional Facility;
JOHN DOE 3, Correction Officer; JOHN DOE 4,
Correction Officer; JANE DOE 6, Nurse,
Washington Correctional Facility; EDIE R.,
Nurse Aide, Washington Correctional Facility;
JOHN DOE 8, Correction Officer;
CORRECTION OFFICER STEPHEN
LESTER; and CORRECTION OFFICER
VICTOR NORTON,
Defendants.
_________________________________________________
APPEARANCES

OF COUNSEL

LAW OFFICES OF DEVON M. WILT
160 Broadway, 4th Floor
New York, New York 10038
Attorneys for Plaintiff

DEVON M. WILT, ESQ.

OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

NICOLE E. HAIMSON, AAG

SCULLIN, Senior Judge
ORDER
Plaintiff commenced this civil rights action against Defendants pursuant to 42 U.S.C.
§ 1983. Defendants Correction Officer Norton and Correction Officer Lester, the only two

Defendants whom Plaintiff has served with the second amended complaint, moved to dismiss some
of Plaintiff's claims against them for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. See Dkt. No. 32. Plaintiff opposed that motion. See Dkt. No. 40. This
Court referred that motion to Magistrate Judge Dancks for a report and recommendation. See Dkt.
No. 33. In a Report and Recommendation dated August 4, 2017, Magistrate Judge Dancks
recommended that the Court grant the motion. See, generally, Dkt. No. 43. Neither Plaintiff nor
Defendants filed objections to that recommendation.
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 reviewing a magistrate judge's recommendations, the district court may accept,
reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The Court has reviewed
Magistrate Judge Dancks' August 4, 2017 Report and Recommendation for clear error and manifest
injustice; and, finding none, the Court hereby
ORDERS that Magistrate Judge Dancks' August 4, 2017 Report and Recommendation, see
Dkt. No. 43, is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant Norton and Lester's motion, see Dkt. No. 32, is GRANTED; and
the Court further
ORDERS that Plaintiff's claims against Defendants Norton and Lester alleging that they
failed to intervene and protect Plaintiff from inmate Sanders' assault are DISMISSED without
prejudice; and the Court further
ORDERS that Plaintiff's claims against Defendants Norton and Lester alleging that they
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were deliberately indifferent to Plaintiff's medical needs are DISMISSED without prejudice; and
the Court further
ORDERS that Plaintiff's claims against Defendants Norton and Lester alleging verbal
harassment and threats are DISMISSED with prejudice; and the Court further
ORDERS that the following claims against all Defendants are DISMISSED with prejudice
sua sponte: (1) § 1983 official capacity claims; (2) assault and battery claims; (3) claims under the
Fifth and Sixth Amendments; and (4) claims under 18 U.S.C. § 241; and the Court further
ORDERS that the following claims against all Defendants are DISMISSED without
prejudice sua sponte: (1) claims under the Fourth Amendment; (2) conspiracy claims under 42
U.S.C. § 1983 and 42 U.S.C. § 1985; and (3) claims under 42 U.S.C. § 1981; and the Court further
ORDERS that this matter is referred to Magistrate Judge Dancks for all further pretrial
matters.

IT IS SO ORDERED.

Dated: August 21, 2017
Syracuse, New York

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