Crichlow v. Fischer et al
Filing
239
DECISION AND ORDER: ORDERED that the Court accepts and adopts Magistrate Judge Dancks's Report-Recommendation and Order (Dkt. No. 233 ) in its entirety. Defendants' motion for summary judgment in lieu of an answer (Dkt. No. 177 ) is GRANTED, and the action is DISMISSED against all remaining Defendants, including those who have not been specifically identified and/or served. Further, Plaintiff's motion for substitution of a party (Dkt. No. 231 ) is DENIED AS MOOT. Plaint iff's motion for a preliminary injunction (Dkt. No. 238 ) is DENIED WITHOUT PREJUDICE to being asserted in a new action complaining about the conduct underlying the motion. The Clerk of the Court may enter final judgment and close the file in this matter. Signed by Senior Judge Thomas J. McAvoy on 12/18/17. {order served via regular mail on plaintiff}(nas, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
KEVIN DAMION CRICHLOW,
Plaintiff,
v.
9:17-cv-00194
(TJM/TWD)
BRIAN FISCHER, et al.,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon.
Thérèse Wiley Dancks, United States Magistrate Judge, for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In her Septem ber 5, 2017
Report-Recommendation and Order (Dkt. No. 233), Magistrate Judge Dancks recommends
that Defendants’ motion for summary judgment in lieu of an answer (Dkt. No. 177) be
granted, and that Plaintiff’s motion for substitution of a party (Dkt. No. 231) be denied as
moot. Plaintiff filed objections to the Report-Recommendation and Order. See Obj., Dkt.
No. 236. On November 29, 2017, Plaintiff filed a motion for a preliminary injunction. Dkt.
No. 238.
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II.
DISCUSSION
a. Objections to Report-Recommendation and Order
When objections to a magistrate judge’s report and recommendation are lodged, the
district court makes a “de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” See 28 U.S.C. §
636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The
Court must make a de novo determination to the extent that a party makes specific
objections to a magistrate’s findings.). After reviewing the report and recommendation, the
Court may “accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge. The judge may also receive further evidence or recommit
the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b).
Having considered Plaintiff’s objections and having completed a de novo review of
the issues raised by the objections, the Court has determined to accept Magistrate Judge
Dancks’s recommendations for the reasons stated in her thorough report. Accordingly,
Defendants’ motion for summary judgment in lieu of an answer (Dkt. No. 177) is granted,
and Plaintiff’s motion for substitution of a party (Dkt. No. 231) is denied as moot.
b. Preliminary Injunction
Plaintiff’s motion for a preliminary injunction complains of conduct subsequent to the
allegations underlying the claims in this action, see Dkt. No. 238-1, pp. 1-3 (complaining
about his medical treatment in October 2017), p. 5 (claiming that he was retaliated against
because he filed “grievances ... with DOCS Office of Special Investigations since 20162017"), and appears to assert new claims for retaliation and denial of medical care based
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on this subsequent conduct. See id., pp. 3-5. Plaintif f cannot amend the Amended
Complaint by bringing a motion for a preliminary injunction complaining about subsequent
conduct. Accordingly, the motion for a preliminary injunction is denied without prejudice to
being asserted in a new action complaining about the conduct underlying the motion.
IV.
CONCLUSION
For the reasons discussed above, the Court accepts and adopts Magistrate Judge
Dancks’s Report-Recommendation and Order (Dkt. No. 233) in its entirety. Defendants’
motion for summary judgment in lieu of an answer (Dkt. No. 177) is GRANTED, and the
action is DISMISSED against all remaining Defendants, including those who have not been
specifically identified1 and/or served. Further, Plaintiff’s motion for substitution of a party
(Dkt. No. 231) is DENIED AS MOOT.
Plaintiff’s motion for a preliminary injunction (Dkt. No. 238) is DENIED WITHOUT
PREJUDICE to being asserted in a new action complaining about the conduct underlying
the motion.
The Clerk of the Court may enter final judgment and close the file in this matter.
IT IS SO ORDERED.
Dated: December 18, 2017
1
Plaintiff names several “Doe” defendants, as well as defendants identified only by position or badge
number (such as defendant “B-3 A Officer S.D.U.”).
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