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Caldwell v. Gettmann

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


August 27, 2010

CORY CALDWELL, PLAINTIFF,
v.
GETTMANN, CORRECTIONS OFFICER; J. STOUT, MEDICAL NURSE; AND WINSTON, CORRECTIONAL OFFICER, UPSTATE CORRECTIONAL FACILITY, FORMERLY KNOWN AS JOHN DOE, DEFENDANTS.

The opinion of the court was delivered by: David N. Hurd United States District Judge

DECISION and ORDER

Plaintiff, Cory Caldwell, commenced this civil rights action in May 2009, pursuant to 42 U.S.C. § 1983. By Report-Recommendation dated July 23, 2010, the Honorable David E. Peebles, United States Magistrate Judge, recommended that defendants' motion to dismiss (Docket No. 17) be granted, in part, and that plaintiff's claims for negligence be dismissed with prejudice, and that plaintiff's claims for medical indifference, including all claims against defendant J. Stout, be dismissed with leave to replead; and further recommended that defendants' motion to dismiss otherwise be denied. No objections to the Report-Recommendation have been filed.

Based upon a careful review of the file, and the recommendations of Magistrate Judge Peebles, the Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. 636(b)(1).

Accordingly, it is ORDERED that

1. Defendants' motion to dismiss (Docket No. 17) is GRANTED, in part;

2. Plaintiff's claims for negligence are DISMISSED with prejudice;

3. Plaintiff's claims for medical indifference, including all claims against defendant J. Stout, are DISMISSED with leave to replead;

4. Defendants' motion to dismiss otherwise is DENIED;

5. The file is returned to the Magistrate Judge for any further proceedings.

IT IS SO ORDERED.

20100827

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