Jones v. Superintendent of Attica Correctional Facility et al

Filing 34

ORDER granting in part and denying in part 14 defendants' Motion to Dismiss for Failure to State a Claim; denying 17 plaintiff's Motion for Summary Judgment; adopting Report and Recommendation re 26 . Case is referred back to Magistrate Judge for further proceedings. Signed by Hon. Richard J. Arcara on 9/25/2012. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

EVERETT JONES, 07-A-5636,
Plaintiff,
v.

ORDER
10-CV-823

SUPERINTENDENT OF ATTICA
CORRECTIONAL FACILITY,
SERGEANT COCHRAN and
R.N. HAW LEY,
Defendants.

This case was referred to Magistrate Judge H. Kenneth Schroeder, Jr.
pursuant to 28 U.S.C. § 636(b)(1). On June 23, 2011, defendants filed a motion
to dismiss so much of plaintiff's pro se complaint which asserts claims pursuant to
41 U.S.C. § 1983 against Superintendent Conway and Sergeant Corcoran for
failure to state a cause of action pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. On June 28, 2011, plaintiff filed a motion for summary judgment.
On February 3, 2012, Magistrate Judge Schroeder filed a Report and
Recommendation, recommending that defendants' motion be granted with
respect to Superintendent Conway and denied with respect to Sergeant Corcoran
and that plaintiff's motion for summary judgment be denied.
Plaintiff filed objections to the Report and Recommendation on February
21, 2012, and defendants filed a response thereto.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made. Upon a de novo review of the Report and
Recommendation, and after reviewing the submissions of the parties, the Court
adopts the proposed findings of the Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Schroeder's
Report and Recommendation, defendants' motion is granted with respect to
Superintendent Conway and denied with respect to Sergeant Corcoran and
plaintiff's motion for summary judgment is denied.
The case is referred back to Magistrate Judge Schroeder for further
proceedings.
SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: September 25, 2012

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