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Latorres v. Selsky

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 7, 2010

EDUARDO LATORRES, PLAINTIFF,
v.
DONALD SELSKY, SPECIAL HOUSING UNIT DIRECTOR FOR THE DEPARTMENT OF CORRECTIONAL SERVICES; AND CRAIG GUMMERSON, CAPTAIN FOR AUBURN CORRECTIONAL FACILITY, DEFENDANTS.

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

ORDER

Plaintiff brought this action against Defendants pursuant to 42 U.S.C. § 1983, alleging a deprivation of his civil rights. In his complaint, Plaintiff asserted that, during the course of a disciplinary proceeding that resulted in a finding of guilt and a sentence of an extended period of disciplinary confinement, Defendants denied him due process.*fn1 See, generally, Dkt. No. 1. In response to Plaintiff's complaint, Defendants moved to dismiss on the grounds that the Court lacked subject matter jurisdiction over Plaintiff's claims, that Plaintiff's complaint failed to state a claim upon which the Court might grant relief, and that the doctrine of qualified immunity precluded Plaintiff's claim. See, generally, Dkt. No. 15. In a Report and Recommendation dated January 11, 2010, Magistrate Judge Peebles recommended that this Court deny Defendants' motion to dismiss without prejudice to Defendants' right to reassert the defense of qualified immunity at a later stage of this action. See Dkt. No. 17 at 19.

In response to these recommendations, Plaintiff filed a letter response. See Dkt. No. 19. Although the Clerk of the Court docketed this letter as an objection to the Report and Recommendation, Plaintiff, in fact, "concede[d] with the Report and Recommendation . . . ." See Dkt. No. 19.*fn2

Having reviewed Magistrate Judge Peebles' Report and Recommendation for clear error, and finding none, the Court hereby

ORDERS that Magistrate Judge Peebles' January 11, 2010 Report and Recommendation is ADOPTED IN ITS ENTIRETY for the reasons stated therein; and the Court further

ORDERS that Defendants' motion to dismiss is DENIED without prejudice to Defendants' right to reassert the defense of qualified immunity at a later stage of this action; and the Court further

ORDERS that this matter is referred to Magistrate Judge Peebles for all further pretrial matters.

IT IS SO ORDERED.

Syracuse, New York


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