Gervasio v. New York State Parole Office et al, No. 9:2020cv00346 - Document 28 (N.D.N.Y 2021)

Court Description: DECISION AND ORDER: ORDERED that the Report-Recommendation of Magistrate Judge Stewart, dkt. # 26 , is hereby ACCEPTED and ADOPTED. Defendants' motion to dismiss, dkt. # 20 , is hereby DENIED. Signed by Senior Judge Thomas J. McAvoy on 2/3/2021. {order served via regular mail on plaintiff}(nas, )

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Gervasio v. New York State Parole Office et al Doc. 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ KEVIN GERVASIO, Plaintiff, vs. 9:20-CV-346 (TJM/DJS) RICARDO DIAZ, and ALEZ ROSA, Defendants. ___________________________________________ Thomas J. McAvoy, Sr. U.S. District Judge DECISION & ORDER The Court referred this pro se civil action, brought pursuant to 42 U.S.C. § 1983, to Magistrate Daniel J. Stewart for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff alleges that the Defendants, parole officers, used excessive force in taking him into custody. Defendants have filed a motion to dismiss. See dkt. # 20. Magistrate Judge Stewart’s Report-Recommendation, dkt. # 26, issued on September 28, 2020, recommends that the Court deny the motion to dismiss. Plaintiff has adequately alleged, Magistrate Judge Stewart concludes, that Defendants used excessive force when they they took him into custody by unnecessarily bending his hand back, kicking his leg, and throwing him to the ground. Neither party objected to the Report-Recommendation, and the time for such 1 Dockets.Justia.com objections has passed. After examining the record, this Court has determined that the Report-Recommendation is not subject to attack for plain error or manifest injustice and the Court will accept and adopt the Report-Recommendation for the reasons stated therein. Accordingly, The Report-Recommendation of Magistrate Judge Stewart, dkt. #26, is hereby ACCEPTED and ADOPTED. Defendants’ motion to dismiss, dkt. # 20, is hereby DENIED. IT IS SO ORDERED. Dated:February 3, 2021 2

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