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Julio Melecio v. Brian Fischer

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 11, 2012

JULIO MELECIO, PLAINTIFF,
v.
BRIAN FISCHER, NEW YORK STATE COMMISSIONER OF CORRECTIONS; JERRY JANIEC, INMATE GRIEVANCE PROGRAM SUPERVISOR OF GREENE CORRECTIONAL FACILITY; KATHY APPLE, BUSINESS OFFICE CLERK, GREENE CORRECTIONAL FACILITY; MR. WELHELM, SENIOR CORRECTIONAL COUNSELOR, GREENE CORRECTIONAL FACILITY; MR. KROM, INMATES ACCOUNT CLERK; MR. DIRIE, DEPUTY OF SECURITY; MICHAEL GRAZIANO, DEPUTY SUPERINTENDENT OF ADMINISTRATIVE SERVICES, GREENE CORRECTIONAL FACILITY; MARIE HAMMOND, DEPUTY FOR PROGRAM, GREENE CORRECTIONAL FACILITY; JEFF MCKOY, SUPERINTENDENT, GREENE CORRECTIONAL FACILITY; MR. GLASSER, SGT. AT THE S.H.U. 200, GREENE CORRECTIONAL FACILITY; MR. DOUIGH, SGT. AT THE S.H.U. 200, GREENE CORRECTIONAL FACILITY; MR. S. LUCAS, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; MR. WHITEASH, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; MR. D. RAMIREZ, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; MR. LEONARDO, CORRECTIONAL OFFICER, GREEN CORRECTIONAL FACILITY; MR. B. JUNE, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; MR. D. VINCENT, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; MS. P. BUNCH, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; MS. M. GONZALEZ, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; MR. MURPHY, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; MR. G. MILLER, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; JANE DOE, NURSE, ADMINISTRATIVE OFFICE, GREENE CORRECTIONAL FACILITY; MS. SMITH, CORRECTIONAL DOCTOR, GREENE CORRECTIONAL FACILITY; MS. M. REED, CORRECTIONAL R.N., GREENE CORRECTIONAL FACILITY; MS. S. DIMICK, CORRECTIONAL R.N., GREENE CORRECTIONAL FACILITY; MS. S. DERR, CORRECTIONAL R.N., GREENE CORRECTIONAL FACILITY; JANE DOE, MAIL ROOM CLERK, GREENE CORRECTIONAL FACILITY; MS. A. HORNER, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; MR. MAHON, CORRECTIONAL OFFICER, GREENE CORRECTIONAL FACILITY; DOUG BOTSFORD; D. UHLER; MARIO DOUYON DEAZEV; DR. ADAMS; NANCY SMITH; ELIZABETH WHITE; GERALDINE WILSON; ROXANNE LECLERC; TRUDY-LYNN CARON; INSPECTOR GENERAL, DOCS; AND IRRUSSO, CORRECTIONS COUNSELOR, DEFENDANTS.
JULIO MELECIO, PLAINTIFF,
v.
GREENE CORRECTIONAL FACILITY BUSINESS OFFICE CLERK JANE DOE; INMATE ACCOUNTS OFFICE CLERK JANE DOE; INMATES GRIEVANCE OFFICE SUPERVISOR JOHN DOE; DEPUTY OF SECURITY JOHN DOE; SUPERINTENDENT JOHN DOE; MR. GLASSER; C.O. VINCENT; COMMISSIONER OF CORRECTIONS; INSPECTOR GENERAL; CORRECTIONAL COUNSELOR IRUSSO; S. LUCAS; AND MR. D. RAMIREZ, DEFENDANTS.

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

MEMBER CASE

ORDER

Plaintiff commenced two separate actions pursuant to 42 U.S.C. § 1983. See Melecio v. Fischer, 9:10-CV-289; Melecio v. Greene Correctional Facility, 9:10-CV-470. On October 1, 2010, Plaintiff moved to amend his complaint and to consolidate the two actions. See Dkt. No. 33. In a Memorandum-Decision and Order dated November 22, 2010, this Court found that the form, substance, and Defendants involved in the two actions were nearly identical and granted Plaintiff's motion to amend and consolidate the two actions with Melecio v. Fischer, 9:10-CV- 289, designated as the lead case. See Dkt. No. 34 at 5-7. Furthermore, this Court directed the Clerk of the Court to file Plaintiff's proposed amended complaint as the consolidated complaint for both cases.

In his consolidated amended complaint, Plaintiff alleges that Defendants retaliated against him for filing grievances and violated his rights under the Eighth Amendment. See Dkt. No. 35, Consolidated Amended Complaint. Defendants moved to dismiss the consolidated amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 46. Plaintiff did not file any papers in opposition to that motion.

On September 27, 2011, Magistrate Judge Treece issued a Report-Recommendation and Order, in which he recommended that the Court grant Defendants' motion and dismiss Plaintiff's consolidated amended complaint in its entirety. See Dkt. No. 55. Plaintiff did not file any objections to those recommendations.*fn2

When a party does not object to a magistrate judge's report-recommendation, the court reviews that report-recommendation for clear error or manifest injustice. See Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted). After conducting that review, "the Court may 'accept, reject, or modify, in whole or in part, the . . . recommendations made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)(1)(C).

The Court has reviewed Magistrate Judge Treece's September 27, 2011 Report- Recommendation and Order for clear error and manifest injustice; and, finding none, the Court hereby ORDERS that Magistrate Judge Treece's September 27, 2011 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendants' motion to dismiss is GRANTED and Plaintiff's consolidated amended complaint is DISMISSED; and the Court further ORDERS that Plaintiff's claims against Defendant Horner and all unidentified Defendants are DISMISSED, pursuant to 28 U.S.C. § 1915A, for failure to state a claim; and the Court further ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close both Melecio v. Fischer, 9:10-CV-289, and Melecio v. Greene Correctional Facility, 9:10- CV-470; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.


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