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Kenneth J. Phelan v. Quinn

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


October 23, 2012

KENNETH J. PHELAN, PLAINTIFF,
v.
QUINN, CORRECTIONAL OFFICER, GREAT MEADOW CORRECTIONAL FACILITY; SWAN, CORRECTIONAL OFFICER, GREAT MEADOW CORRECTIONAL FACILITY; MCDONALD, CORRECTIONAL OFFICER, GREAT MEADOW CORRECTIONAL FACILITY; WARRINGTON, CORRECTIONAL OFFICER, GREAT MEADOW CORRECTIONAL FACILITY; WASHER, SERGEANT, GREAT MEADOW CORRECTIONAL FACILITY; MINAL,*FN1 PSYCHOLOGIST, GREAT MEADOW CORRECTIONAL FACILITY; TORRES, COUNSELOR, GREAT MEADOW CORRECTIONAL FACILITY; OWENS, SERGEANT, GREAT MEADOW CORRECTIONAL FACILITY; GEBO, CORRECTIONAL OFFICER, GREAT MEADOW CORRECTIONAL FACILITY; FULLER, CORRECTIONAL OFFICER, GREAT MEADOW CORRECTIONAL FACILITY; KISER, CORRECTIONAL OFFICER, GREAT MEADOW CORRECTIONAL FACILITY; AND MURPHY, CORRECTIONAL OFFICER, GREAT MEADOW CORRECTIONAL FACILITY, DEFENDANTS.*FN2

APPEARANCES: OF COUNSEL: KENNETH J. PHELAN Plaintiff Pro Se 09-A-1183 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541 HON. ERIC T. SCHNEIDERMAN ADRIENNE J. KERWIN, ESQ. Attorney General for the State of Ass't Attorney General New York Attorney for Defendants The Capitol Albany, NY 12224

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

DECISION and ORDER

Plaintiff brought this action pursuant to 42 U.S.C. § 1983. On September 20, 2012, the Honorable Christian F. Hummel, United States Magistrate Judge, advised, by Report-Recommendation, that defendants' motions to dismiss be denied as to the retaliation claims against defendants McDonald, Warrington, Swan, and Gebo, and granted as to the failure to protect claims against defendants Quinn, Manell, Torres, and Washer. Magistrate Judge Hummel also recommended that the surviving claims and defendants be consolidated into a final, third amended complaint, which should contain all relevant facts regarding these claims as alleged in Phelan's opposition papers to defendants' present motion and further, that upon the filing of the third amended complaint, the pleadings be returned to Magistrate Judge Hummel for further review to ensure compliance. Plaintiff timely filed objections to the Report-Recommendation.

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

Therefore it is ORDERED that

1. Defendants' motion to dismiss is GRANTED in part and DENIED in part;

2. Plaintiff's failure to protect claims against defendants Quinn, Manell, Torres, and Washer are DISMISSED;

3. Plaintiff's retaliation claims against defendants McDonald, Warrington, Swan, and Gebo REMAIN;

4. The surviving claims and defendants be consolidated into a final, third amended complaint, which should contain all relevant facts regarding these claims as alleged in plaintiff's opposition papers to defendants' present motion; and

5. Upon the filing of the third amended complaint, the pleadings shall be returned to Magistrate Judge Hummel for further review to ensure compliance.

IT IS SO ORDERED.


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