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UNITED STATES DISTRICT COURT er — □□□
WESTERN DISTRICT OF NEW YORK SD \ \
NOV 04 2021}
M4 nef /
STONEY HARRISON, es Soloewengu ny ee
RN DISTRIC’
Plaintiff,
Vv. 19-CV-151 (JLS) (LGF)
BISHME NELSON,
B. J. GABEL,
KEVIN BROWN,
AHMED MUHAMMAD, and
STEWART ECKERT,
Defendants.
DECISION AND ORDER
Pro se Plaintiff Stoney Harrison, an inmate in the custody of New York State
Department of Corrections and Community Supervision (“DOCCS’”), commenced
this action against Defendants, all employees of DOCCS, on January 28, 2019,
pursuant to 42 U.S.C. § 1983, and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq. Dkt. 1. Plaintiff alleges
Defendants violated his First Amendment right to the free exercise of his religion
and free speech, Fourteenth Amendment right to due process, and rights under the
RLUIPA. Harrison also requested to proceed in forma pauperis (“IFP”), Dkt. 2,
which was granted. On April 18, 2020, the Court referred this case to United States
Magistrate Judge Leslie Foschio for all pre-trial proceedings under 28 U.S.C. §
636(b)(1)(A) and (B). Dkt. 9. Pursuant to the referral order, Judge Foschio was to
hear and report upon dispositive motions pursuant to 28 U.S.C. § 686(b)(1)(B) and
(C). Id.
Defendants moved to revoke Harrison’s IFP status and dismiss his RLUIPA
claims insofar as they request money damages. Dkt. 8. Harrison filed a response,
Dkt. 11, and Defendants filed a reply. Dkt. 12. Harrison subsequently paid the
filing fee.
On October 6, 2021, Judge Foschio issued a Report and
Recommendation/Decision and Order (“R&R”) that denied Defendants’ Motion to
revoke Harrison’s IFP status as moot, and recommended that “Defendants’ Motion
should be GRANTED as to Plaintiffs RLUIPA claims seeking money damages
against Defendants in their individual capacities, and with regard to all damage
claims against Defendants in their official capacities, which claims should be
DISMISSED.” Dkt. 13, p. 6. Neither party filed objections.
A district court may accept, reject, or modify the findings or recommendations
of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(8). A district
court must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which an objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(8). Otherwise, a district court must “modify or set aside any part of [a
magistrate judge’s] order that is clearly erroneous or is contrary to law.” Fed. R.
Civ. P. 72(a). An order “is clearly erroneous or contrary to law when it fails to apply
or misapplies relevant statutes, case law or rules of procedure.” Tracy v. NVR, Inc.,
791 F. Supp. 2d 340, 342 (W.D.N.Y. 2011) (internal quotations and citation
omitted).
Based on the Court’s review and the absence of any objections, the Court
accepts and adopts the R&R.
CONCLUSION
For the reasons stated above, and in the R&R, Defendants’ Motion is
GRANTED as to Plaintiffs RLUIPA claims seeking money damages against
Defendants in their individual capacities, and with regard to all damage claims
against Defendants in their official capacities, which claims are DISMISSED. The
case remains referred to Judge Foschio.
SO ORDERED.
Dated: November 4, 2021
Buffalo, New York □
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\ WA 7 =
JOHN L. SINATRA, JR.
UNITED STATES DISTRICT JUDGE