Summary
finding that a single "isolated incident" of denying prisoner a special meal bag was a substantial burden (citing William v. Does, 639 F. App'x. 55, 56-57 (2d Cir. 2016))
Summary of this case from Sherwood v. SenegalOpinion
Civil Action No. 9:14-CV-1092 (TJM/DEP)
07-12-2016
ELIJAH SKATES, Plaintiff, v. JARROD SHUSDA, et al., Defendants.
THOMAS J. McAVOY, Senior United States District Judge
DECISION & ORDER
I. INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. David E. Peebles, Chief United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). No objections to Magistrate Judge Peebles' Report and Recommendation [dkt. # 36] have been filed, and the time to do so has expired.
II. DISCUSSION
After examining the record, this Court has determined that the Report and Recommendation is not subject to attack for plain error or manifest injustice.
III. CONCLUSION
Accordingly, the Court ADOPTS the Report and Recommendation [dkt. # 36] for the reasons stated therein. The defendants' motion to dismiss [dkt. # 34] plaintiff's amended complaint [dkt. # 33) is GRANTED in part, and plaintiff's equal protection and retaliation claims are DISMISSED with leave to file a second amended complaint within thirty (30) days from the date of this Decision and Order, but that the remaining portion of the motion, addressing plaintiff's First Amendment free exercise cause of action, is DENIED.
Plaintiff is advised that an amended complaint supersedes in all respects the prior pleading. Therefore, if Plaintiff files a second amended complaint, he must properly allege in the second amended complaint all factual bases for all claims asserted therein. The failure to file a second amended complaint within this time frame will be deemed as an abandonment of the dismissed claims, and a "with prejudice" dismissal will be entered on the Court's docket on the dism issed claims without further order by the Court.
IT IS SO ORDERED.
Dated:July 12, 2016
/s/_________
Thomas J. McAvoy
Senior, U.S. District Judge