Vance v. The State of New York Department of Corrections and Community Supervision

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

WAYNE PHILLIP VANCE,

Plaintiff, 9:18-cv-0748 (BKS/ATB)

v.

DONALD VENETTOZZI, et al.,

Defendants.

Appearances: Plaintiff, pro se: Wayne Phillip Vance 12-B-3682 Elmira Correctional Facility P.O. Box 500 Elmira, NY 14902 For Defendants: Letitia James Attorney General of the State of New York Erik Boule Pinsonnault Assistant Attorney General The Capitol Albany, NY 12224 Hon. Brenda K. Sannes, United States District Judge: MEMORANDUM-DECISION AND ORDER Plaintiff Wayne Phillip Vance, a New York State inmate, commenced this action asserting claims under 42 U.S.C. § 1983 arising out of his incarceration. (Dkt. No. 1). On August 24, 2020, Defendants filed a partial motion to dismiss under Fed. R. Civ. P. 12(b)(6) on behalf of Defendants G. Waterson and D. Venettozzi. (Dkt. No. 127). Plaintiff did not file a response; on October 15, 2020, he notified the Court that he did not intend to respond to the motion. (Dkt. No. 132). This matter was assigned to United States Magistrate Judge Andrew T. Baxter who, on November 30, 2020, issued a Report-Recommendation recommending that Defendants’ motion to dismiss be denied. (Dkt. No. 137).1 Magistrate Judge Baxter advised the parties that under 28 U.S.C. § 636(b)(1), they had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen days would preclude appellate review. (Id. at 12).

No objections have been filed. As no objections to the Report-Recommendation have been filed, and the time for filing objections has expired, the Court reviews the Report- Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 229 (N.D.N.Y. 2012) (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes to 1983 amendment). Having reviewed the Report-Recommendation for clear error and found none, the Court adopts the Report- Recommendation in its entirety. For these reasons, it is ORDERED that the Report-Recommendation (Dkt. No. 137) is ADOPTED in its entirety; and it is further

ORDERED that the surviving claim against Nurse Waterson is clarified as arising from allegations of deliberate medical indifference challenging his conduct immediately following an alleged assault at Upstate Correctional Facility on August 26, 2016; and it is further ORDERED that Defendants’ motion to dismiss (Dkt. No. 127) is DENIED; and it is further

1 In light of what appears to be a typographical error in the complaint, Magistrate Judge Baxter recommended that the surviving claim against Nurse Waterson be clarified as arising from allegations of deliberate medical indifference challenging Nurse Waterson’s conduct immediately following an alleged assault at Upstate Correctional Facility on August 26, 2016. (Dkt. No. 137, at 9). ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules. IT IS SO ORDERED.

Dated: December 18, 2020 Syracuse, New York Brrr of CA kK nannies Brenda K. Sannes U.S. District Judge