Garno v. Ruger et al

Filing 35

DECISION AND ORDER: The Defendants' motion to dismiss the amended complaint 20 pursuant to Fed. R. Civ. P. 12(b)(6) is granted in part and denied in part, as specified in the attached Order. The Court adopts the reasoning of the Reportand Re commendation 29 except to the limited extent the right of access to courts reasoning is predicated exclusively upon on a Sixth Amendment right to counsel and not upon a First Amendment right of access. The Clerk shall enter Judgement in favor of t he County of Yates. The case is recommitted to Magistrate Judge Schroeder for further proceedings. A copy of the Decision and Order has been mailed to Greg Garno, 15-B-0533, CLINTON CORRECTIONAL FACILITY, Box 2001, Dannemora, NY 12929. SO ORDERED. Signed by Hon. Richard J. Arcara on 1/23/18. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GREG GARNO, 15-B-0533,
Plaintiff,
DECISION AND ORDER
14-CV-239-A

v.
CLAY RUGER,
RONALD SPIKE,
JASON COOK, and
THE COUNTY OF YATES,
Defendants.

This pro se civil-rights case was referred to Magistrate Judge H. Kenneth
Schroeder, Jr., pursuant to 28 U.S.C. § 636(b)(1) for the conduct of pretrial
proceedings. On September 19, 2017, Magistrate Judge Schroeder filed a Report
and Recommendation (Dkt. No. 29) recommending that the Defendants’ motion to
dismiss the amended complaint (Dkt. No. 20) be granted in part. The Magistrate
Judge recommends that Defendant County of Yates be dismissed as a party to the
action, and that Plaintiff Garno’s state law claims for interference with contract be
dismissed. The Magistrate Judge further recommends that the motion to dismiss
Plaintiff’s federal procedural due process, equal protection, and interference with
access to the courts claims be denied as to defendants Cook, Spike and Rugar.
The Court has carefully reviewed the Report and Recommendation, the record
in this case, and no objections to the Report and Recommendation having been timely
filed, it is hereby

ORDERED, pursuant to 28 U.S.C. § 636(b)(1), the Defendants’ motion to
dismiss the amended complaint pursuant Fed. R. Civ. P. 12(b)(6) is granted in part
and denied in part, as specified above. The Court adopts the reasoning of the Report
and Recommendation expect to the limited extent the right of access to courts
reasoning is predicated exclusively upon on a Sixth Amendment right to counsel and
not upon a First Amendment right of access1.
The Clerk shall enter Judgement in favor of the County of Yates. The case is
recommitted to Magistrate Judge Schroeder for further proceedings.
IT IS SO ORDERED.

____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: January 23, 2018

1

Compare Christopher v. Harbury, 536 U.S. 403, 413 (2002) (First Amendment right of
access to courts) with Heck v. Humphrey, 512 U.S. 477, 479-89 (1994) (A 42 U.S.C. § 1983
damages remedy is not ordinarily available unless an underlying state-court conviction is
invalidated).
2