Watson v. Koenigsmann et al

Filing 73

DECISION AND ORDER adopting Magistrate Judge Hugh B. Scott's Report and Recommendation 67 . Defendant Lepkowski's motion to dismiss 61 is granted, and the amended complaint is dismissed with respect to Defendant Thomas Lepkowski. The ca se is referred back to Magistrate Judge Scott for further proceedings. A copy of the Decision and Order has been mailed to Jean Bernier, 29463-054, BUTNER FEDERAL MEDICAL CENTER, Inmate Mail/Parcels, P.O. BOX 1600, BUTNER, NC 27509. SO ORDERED. Signed by Hon. Richard J. Arcara on 4/17/2018. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JEAN BERNIER, #29463-054,
Plaintiff,
DECISION AND ORDER
15-CV-209A

v.

SWEET AND LEPKOWSKI,
Defendants.

This civil rights case was referred to Magistrate Judge Hugh B. Scott, pursuant to
28 U.S.C. § 636(b)(1)(B). On February 26, 2018, Magistrate Judge Scott filed a Report
and Recommendation (Dkt. No. 67), recommending that Defendant Lepkowski’s motion
to dismiss (Dkt. No. 61) be granted.
On March 12, 2018, pro se Plaintiff Jean Bernier filed objections to the Report
and Recommendation (Dkt. No. 68). Defendant Lepkowski filed a response on March
28, 2018 (Dkt. No. 70), and Plaintiff filed a reply on April 12, 2018 (Dkt. No. 44). The
matter was deemed submitted.
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 de novo review, and after carefully reviewing the
submissions from the parties, the Court adopts Magistrate Judge Scott’s conclusions. It
is, therefore
ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth
in Magistrate Judge Scott’s Report and Recommendation, Defendant Lepkowski’s

motion to dismiss (Dkt. No. 61) is granted, and the amended complaint is dismissed
with respect to Defendant Thomas Lepkowski.
This Decision and Order “adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties.” Fed. R. Civ. P. 54(b). Thus, the Clerk of Court shall
not, at this time, enter judgment against Defendant Lepkowski. If the plaintiff seeks entry
of final judgment against Defendant Lepkowski, he shall, within 30 days of the date of this
Decision and Order, make a motion pursuant to Federal Rule of Civil Procedure 54(b).
See Novick v. AXA Network, LLC, 642 F.3d 304, 310-11 (2d Cir. 2011) (summarizing
standard for certification under Rule 54(b)).
The case is referred back to Magistrate Judge Scott for further proceedings.

IT IS SO ORDERED.

____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: April 17, 2018