McRae v. Fischer et al

Filing 18

ORDER adopting 17 Report and Recommendations and granting 10 Motion to Dismiss for Failure to State a Claim. Plaintiff's amended complaint is dismissed with prejudice. Signed by Judge Brenda K. Sannes on 7/16/18. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TROY MCRAE,
Plaintiff,

9:17-cv-00146 (BKS/CFH)

v.
BRIAN FISCHER, Commissioner, et al.,
Defendants.
APPEARANCES:
Troy McRae
A-046-109-695
Buffalo Federal Detention Facility
4250 Federal Drive
Batavia, NY 14020
Plaintiff, pro se
Aimee M. Cowan, Esq.
Hon. Barbara Underwood
Office of New York State Attorney General
615 Erie Boulevard West, Suite 102
Syracuse, NY 13204
Attorney for Defendants
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Troy McRae, a former New York State inmate, commenced this civil rights
action asserting claims under 42 U.S.C. § 1983 arising out of his incarceration. (Dkt. No. 1). On
September 4, 2017, 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. 10). Plaintiff filed a
response on September 20, 2017 (Dkt. No. 14), and Defendants filed a reply on October 10, 2017
(Dkt. No. 15). This matter was referred to United States Magistrate Judge Christian F. Hummel

who, on June 6, 2018, issued a Report-Recommendation and Order recommending that
Defendants’ motion to dismiss be granted and that Plaintiff’s amended complaint be dismissed
with prejudice. (Dkt. No. 17). Magistrate Judge Hummel 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. 17, at 17). 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. 17) is ADOPTED in its
entirety; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 10) is GRANTED and that
Plaintiff’s amended complaint is DISMISSED with prejudice; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with
the Local Rules.
IT IS SO ORDERED.
Dated: July 16, 2018
Syracuse, New York

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