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White v. Bergenstock

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


November 25, 2009

LAMONT WHITE, PLAINTIFF,
v.
J. BERGENSTOCK, CORRECTION OFFICER, AUBURN CORRECTIONAL FACILITY; MR. SENDERSON, MENTAL HEALTH UNIT, AUBURN CORRECTIONAL FACILITY; D. SMITH, CORRECTION OFFICER, AUBURN CORRECTIONAL FACILITY; C. CLARKE, CORRECTION OFFICER, AUBURN CORRECTIONAL FACILITY; T. CLARKE, CORRECTION OFFICER, AUBURN CORRECTIONAL FACILITY; M. STURGEN, REGISTERED NURSE, UPSTATE CORRECTIONAL FACILITY; S. WALSH, REGISTERED NURSE; LOUIS TISHENOR, PHYSICIAN ASSISTANT, UPSTATE CORRECTIONAL FACILITY; M. SMITH, NURSE ADMINISTRATOR, UPSTATE CORRECTIONAL FACILITY; S. DANSON, CORRECTIONAL OFFICER, UPSTATE CORRECTIONAL FACILITY; LUMBARD, SGT., UPSTATE CORRECTIONAL FACILITY; R.K. WOODS, SUPERINTENDENT, UPSTATE CORRECTIONAL FACILITY; HAROLD GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY; RICHARD ROY, INSPECTOR GENERAL; AND BRIAN FISCHER, COMMISSIONER, DEFENDANTS.

The opinion of the court was delivered by: SCULLIN,Senior Judge

ORDER

Currently before the Court is Magistrate Judge Homer's October 23, 2009 Report-Recommendation and Order to which the parties have filed no objections. Having reviewed the Report-Recommendation and Order and finding that the same is neither clearly erroneous nor contrary to law, the Court hereby

ORDERS that Magistrate Judge Homer's October 23, 2009 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Defendants' motions to dismiss are GRANTED with respect to all claims against Defendants Bergenstock, Senderson, D. Smith, Walsh, Tishenor, M. Smith, Lumbard, Woods, Graham, Roy and Fisher in their individual and official capacities; and the Court further

ORDERS that Defendants' motions to dismiss are GRANTED with respect to all claims against Defendants Sturgen, T. Clarke, and C. Clarke in their official capacities; and the Court further

ORDERS that the complaint is DISMISSED WITHOUT PREJUDICE with respect to all claims against Defendant Danson in accordance with Rule 4(m) of the Federal Rules of Civil Procedure and Local Rule 4.1(b); and the Court further

ORDERS that Defendants' motions to dismiss are DENIED with respect to Plaintiff's Eighth Amendment and pendent state-law claims against Defendant Sturgen in his/her individual capacity regarding the removal of Plaintiff's neck brace; and the Court further

ORDERS that this matter is referred to Magistrate Judge Homer for all further pretrial matters.*fn1

IT IS SO ORDERED.


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