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Anderson v. Duke

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


September 27, 2006

LESSIE ANDERSON, PLAINTIFF,
v.
LOYCE DUKE, DEPT. SUPERINTENDENT OF P ROGRAMS; H ERBERT M CL AUGHLIN, SUPERINTENDENT, HUDSON CORRECTIONAL FACILITY; OSCAR MCL AUGHLIN; R EV., C OORDINATING CHAPLAIN; D. T HOMAS TESTO, G RIEVANCE S UPERVISOR; AND WATCH COMMANDER, DEFENDANTS.

The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

Plaintiff, formerly an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action under 42 U.S.C. § 1983, alleging that while he was incarcerated, defendants deprived him of his First Amendment right to free exercise of his religious beliefs. He also claims that, after he filed that an inmate grievance regarding the matter, prison officials improperly disclosed information regarding his grievance and conducted a hearing regarding the grievance in his absence.

Presently before the Court is a motion (Dkt. No. 31) by defendant Herbert McLaughlin to dismiss the amended complaint against him based on the lack of his personal involvement in the constitutional violations alleged. The motion was referred to United States Magistrate Judge David E. Peebles for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c).

In his Report and Recommendation (Dkt. No. 42), Magistrate Judge Peebles finds that, "even when generously construed in his favor," plaintiff's amended complaint (Dkt. No. 20) "fails to allege the moving defendant's personal involvement in a cognizable, constitutional violation[.]" Accordingly, Magistrate Judge Peebles recommends that the motion be granted with leave to replead.

Plaintiff has interposed an objection (Dkt. No. 43). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review of those parts of a magistrate judge's Report and Recommendation to which a party specifically objects. Essentially, plaintiff's objection addresses the merits of his claim against McLaughlin. These allegations may be asserted in a second amended complaint filed in accordance herewith.

It is therefore

ORDERED that the Report and Recommendation of United States Magistrate Judge David E. Peebles (Dkt. No. 42) is accepted and adopted; and it is further ORDERED that the motion (Dkt. No. 31) by defendant Herbert McLaughlin to dismiss the amended complaint is granted with leave to replead; and it is further

ORDERED that if plaintiff chooses to replead his claims against defendant Herbert McLaughlin, he is directed to serve and file a second amended complaint on or before October 30, 2006.

IT IS SO ORDERED.

20060927

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