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, )

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

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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

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