Summary
dismissing plaintiff's claim against a defendant with leave to replead where defendant was named in caption but not described in body of complaint
Summary of this case from Groves v. StateOpinion
No. 9:04-CV-1183.
April 25, 2006
JOSE ORRACA Plaintiff, Pro Se, Southport Correctional Facility NY.
HON. ELIOT SPITZER Attorney General of the State of New York, STEPHEN M. KERWIN, ESQ. Asst. Attorney General Department of Law The Capitol Albany, New York, Attorney for Defendants.
ORDER
Plaintiff, Jose Orraca, brought this civil rights action pursuant to 42 U.S.C. § 1983. In a Report Recommendation dated February 14, 2006, the Honorable David E. Peebles, United States Magistrate Judge, recommended that defendants' motion be granted, in part, and plaintiff's claims against them in their official capacities for damages be dismissed, based upon the Eleventh Amendment; that plaintiff's claims against defendant Maly be dismissed, with leave to replead, based upon the lack of his personal involvement in the deprivations alleged; and that plaintiff's claim for compensatory damages for mental anguish and emotional distress be dismissed; but that defendants; motion be denied in all other respects. (Docket No. 33). The defendants have filed timely objections to the recommendations of the Magistrate Judge. (Docket No. 34). The plaintiff filed a response. (Docket No. "35").
Based upon a de novo determination of the portions of the Report-Recommendation to which the parties have objected, the Report-Recommendation is accepted and adopted in whole. See 28 U.S.C. 636(b)(1).
Accordingly, it is
ORDERED that
1. Defendants' motion to dismiss is GRANTED in part and DENIED in part;
2. Plaintiff's claims for damages against defendants in their official capacities is DISMISSED, based upon the Eleventh Amendment;
3. Plaintiff's claims against defendant Mr. Maly are DISMISSED;
4. Plaintiff's claim for compensatory damages for mental anguish and emotional distress is DISMISSED;
5. Defendants' motion is DENIED in all other respects; and
6. The defendants shall file and serve an answer to the remaining allegations in the complaint on or before May 10, 2006.
IT IS SO ORDERED.