Williams v. McGibbons et al

Filing 47

DECISION AND ORDER: ORDERED that 32 Report and Recommendation is accepted and adopted in all respects. ORDERED that 21 Defendants' Brian McGibbon and Sheila Roussell's motion to dismiss is GRANTED. ORDERED that the complaint is D ISMISSED as to defendants Brian McGibbon and Sheila Roussell. ORDERED that Plaintiff's 36 motion to file an amended complaint is DENIED; and Plaintiff' 37 motion to replace defendant John Doe with Correction Officer Bernard Bradley is GRANTED and the Clerk is directed to do the same and order service of process. Signed by Judge David N. Hurd on 9/11/18. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------RODNEY WILLIAMS,
Plaintiff,
-v-

9:17-CV-709
(DNH/DJS)

BRIAN MCGIBBON,1 Correction Officer, Franklin
Correctional Facility; SANDRA ROUSSELL,
Industrial Supervisor, Franklin Correctional Facility,
Industrial Tailor Shop 1; and JOHN DOE, Escorting
Correctional Officer on August 25, 2016, Franklin
Correctional Facility,
Defendants.
-------------------------------APPEARANCES:
RODNEY WILLIAMS
Plaintiff pro se
10-A-3938
Livingston Correctional Facility
P.O. Box 91
Sonyea, NY 14556
BARBARA D. UNDERWOOD
Attorney General for the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224

MATTHEW P. REED, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge

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The Clerk is directed to amend the docket to reflect the proper spelling of this
defendant's last name as McGibbon.

DECISION and ORDER
Pro se plaintiff Rodney Williams brought this civil rights action pursuant to 42 U.S.C.
§ 1983. On May 7, 2018, the Honorable Daniel J. Stewart, United States Magistrate Judge,
advised by Report-Recommendation that defendants McGibbon and Roussell's motion to
dismiss be granted and the complaint be dismissed as against them. Magistrate Judge
Stewart also ordered the New York State Attorney General's Office to produce information
regarding the identity of the John Doe defendant, against whom the only remaining claim (for
Eighth Amendment excessive force) would remain. The Office has since complied and
identified the individual as Correction Officer Bernard Bradley.
Plaintiff filed a myriad of documents following the issuance of the ReportRecommendation. Those filings have been construed as objections to the ReportRecommendation and have been considered. Based upon a de novo review of the portions
of the Report-Recommendation to which plaintiff objected, the Report-Recommendation is
accepted and adopted in all respects. See 28 U.S.C. § 636(b)(1).
Further, plaintiff requests leave to file an amended complaint regarding his Eighth
Amendment failure to protect claims against defendants McGibbon and Roussell "to state
more clearly the fact of the matter and to remove from complaint my explanation on personal
feelings." ECF No. 36. Pro se plaintiffs are generally afforded an opportunity to amend or to
be heard prior to dismissal. Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). However,
leave to amend pleadings may be denied when amendment would be futile. Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Plaintiff was heard in opposition to defendants' motion to dismiss. After being
provided an extension of time in which to oppose the motion, plaintiff filed a nineteen page
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memorandum of law in opposition along with an "appendix of cases." Magistrate Judge
Stewart's thorough analysis of the objective and subjective prong requirements of an Eighth
Amendment failure to protect claim demonstrates that any amendment by plaintiff on this
claim would be futile. Therefore, plaintiff's request to file an amended complaint will be
denied.
Plaintiff has also requested that the caption be amended and Correction Officer
Bernard Bradley be substituted in place of the John Doe defendant in accordance with the
New York State Attorney General Office's identification of said defendant. ECF No. 37.
Plaintiff's request will be granted and the Clerk is directed to add defendant Correction
Officer Bernard Bradley to the docket and direct the U.S. Marshal to ef fectuate service.
Therefore, it is
ORDERED that
1. Defendants' Brian McGibbon and Sheila Roussell's motion to dismiss is
GRANTED;
2. The complaint is DISMISSED as to defendants Brian McGibbon and Sheila
Roussell;
3. Plaintiff's motion to file an amended complaint, ECF No. 36, is DENIED; and
4. Plaintiff's motion to replace defendant John Doe with Correction Officer Bernard
Bradley, ECF No. 37, is GRANTED and the Clerk is directed to do the same and order
service of process.
IT IS SO ORDERED.

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Dated: September 11, 2018
Utica, New York.

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