Hill v. Khodenko et al

Filing 22

ORDER adopting 21 Report and Recommendations. Defendant's 18 Motion to Dismiss for Failure to State a Claim is granted and Plaintiff's complaint is Dismissed, with leave to amend within 30 days from the date of this Order. Signed by Judge Brenda K. Sannes on 11/28/17. (Copy served on plaintiff via regular mail)(rjb, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________________ DESEAN HILL, Plaintiff, v. 9:17-CV-0031 (BKS/TWD) NURSE KHODENKO, Shawangunk Correctional Facility, Defendant. ________________________________________________ Appearances: Desean Hill 14-A-0857 Great Meadow Correctional Facility Box 51 Comstock, NY 12821 Plaintiff, pro se Katie E. Valder, Esq. Hon. Eric T. Schneiderman Office of New York State Attorney General The Capitol Albany, NY 12224 Attorney for Defendant Hon. Brenda K. Sannes, United States District Judge: MEMORANDUM-DECISION AND ORDER Plaintiff Desean Hill, a New York State inmate, commenced this civil rights action asserting claims under 42 U.S.C. § 1983 arising out of his incarceration at the Shawangunk Correctional Facility. Dkt. No. 1. On July 31, 2017, Defendant 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. 18. Plaintiff did not respond to the motion even though he was advised of his opportunity to do so. Dkt. No. 20. This matter was referred to United States Magistrate Judge Thérèse Wiley Dancks who, on October 19, 2017, issued a Report-Recommendation and Order recommending that Defendant’s motion to dismiss be granted and that Plaintiff’s complaint be dismissed with leave to amend. Dkt. No. 21. Magistrate Judge Dancks 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. 21, at 8. No objections to the Report-Recommendation have been 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 Court adopts it in its entirety. For these reasons, it is ORDERED that the Report-Recommendation (Dkt. No. 21) is ADOPTED in its entirety; and it is further ORDERED that Defendant’s motion to dismiss (Dkt. No. 18) is GRANTED and Plaintiff’s complaint is DISMISSED, WITH LEAVE TO AMEND and it is further ORDERED that Plaintiff is granted leave to file an amended complaint within thirty (30) days from the date of this Order; and it is further ORDERED that if Plaintiff fails to file an amended complaint within thirty (30) days from the date of this Order, the Clerk is directed to close this case without further Order of the Court; and it is further 2 ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules. IT IS SO ORDERED. Dated: November 28, 2017 Syracuse, New York 3

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