Nicholas v. City of Schenectady et al

Filing 19

DECISION AND ORDER: Ordered that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 10 ) is Accepted and Adopted in its entirety; Ordered that all claims against Defendant U.S. Marshal Al Dwyer, insofar as brought pursuant to 42 U.S.C. 1 983, shall be treated as if brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 28 U.S.C. 1331; Ordered that the following claims are Dismissed with prejudice: (1) Plaintiff's claims against the individual Def endants in their official capacities; (2) Plaintiff's Eighth Amendment claims against all Defendants; (3) Plaintiff's Ninth Amendment claims against all Defendants; Ordered that the following claims are Dismissed without prejudice: (1) Plai ntiff's First Amendment claims against all Defendants; (2) Plaintiff's Fourth Amendment malicious prosecution claims against all Defendants; and (3) Plaintiff's Fourteenth Amendment claims against all Defendants, including those claims made by Plaintiff as Fifth Amendment claims, but have been determined to be Fourteenth Amendment claims as set forth in the Report and Recommendation and by this Court. The following claims Survive Defendants' Motion: (1) Plaintiff's Four th Amendment claims for unlawful search and seizure, excessive force, and false arrest and imprisonment against Defendants Savoia, Hudson, Semione, Crounse and Comley in their individual capacities; and (2) All claims against Defendant Dwyer which cl aims shall be treated as if brought pursuant to Bivens vs. Six Unknown Named Agents of the Federal Bureau of Narcotics, 28 U.S.C. 1331. The Clerk of the Court is directed to terminate City of Schenectady and City of Schenectady Police Department. Signed by Chief Judge Glenn T. Suddaby on 10/08/2015. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
MICHAEL NICHOLAS,
Plaintiff,
1:15-CV-0402
(GTS/CFH)

v.
CITY OF SCHENECTADY; CITY OF
SCHENECTADY POLICE DEP’T; SGT. LUCIANO
SAVOIA; OFFICER MICHAEL HUDSON;
OFFICER CRAIG COMLEY; OFFICER MICHAEL
CROUNSE; OFFICE CHRIS SEMIONE; and U.S.
MARSHAL AL DWYER,
Defendants.
______________________________________________
APPEARANCES:

OF COUNSEL:

MICHAEL NICHOLAS
Plaintiff, Pro Se
202 Winnikee Avenue
Poughkeepsie, New York 12601
CARTER, CONBOY, CASE, BLACKMORE,
MALONEY & LAIRD, P.C.
Counsel for Defendants
20 Corporate Woods Boulevard
Albany, New York 12211

MICHAEL J. MURPHY, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in the above-captioned civil rights action filed by Michael
Nicholas (“Plaintiff”) against the above-captioned city, city department and six individuals
(“Defendants”) arising from a stop, search and arrest in Schenectady, New York, on April 9,
2012, is United States Magistrate Christian F. Hummel’s Report-Recommendation
recommending that certain claims asserted in Plaintiff’s Amended Complaint be dismissed.

(Dkt. No. 10.) Plaintiff has not filed an objection to the Report-Recommendation, and the
deadline in which to do so has expired. (See generally Docket Sheet.)
When no objection is made to a report-recommendation, the Court subjects that reportrecommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes:
1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.” Id.:
see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1. (S.D.N.Y. July 31, 1995)
(Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which
no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks and citations omitted).
Here, based upon a review of this matter, the Court can find no clear error with regard to
Magistrate Judge Hummel’s Report-Recommendation. (Dkt. No. 10.) Magistrate Judge
Hummel employed the proper standards, accurately recited the facts, and reasonably applied the
law to those facts. (Id.) As a result, the Report-Recommendation is accepted and adopted in its
entirety for the reasons stated therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 10) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that all claims against Defendant U.S. Marshal Al Dwyer, insofar as brought
pursuant to 42 U.S.C. § 1983, shall be treated as if brought pursuant to Bivens v. Six Unknown
Named Agents of the Fed. Bureau of Narcotics, 28 U.S.C. § 1331; and it is further
ORDERED that the following claims are DISMISSED with prejudice:
(1)

Plaintiff’s claims against the individual Defendants in their official capacities;
2

(2)

Plaintiff’s Eighth Amendment claims against all Defendants; and

(3)

Plaintiff’s Ninth Amendment claims against all Defendants; and it is further

ORDERED that the following claims are DISMISSED without prejudice:
(1)

Plaintiff’s First Amendment claims against all Defendants;

(2)

Plaintiff’s Fourth Amendment malicious prosecution claims against all
Defendants; and

(3)

Plaintiff’s Fourteenth Amendment claims against all Defendants, including those
claims made by Plaintiff as Fifth Amendment claims, but have been determined to
be Fourteenth Amendment claims as set forth in the Report and Recommendation
and by this Court.

The following claims SURVIVE Defendants’ motion:
(1)

Plaintiff’s Fourth Amendment claims for unlawful search and seizure, excessive
force, and false arrest and imprisonment against Defendants Savoia, Hudson,
Semione, Crounse and Comley in their individual capacities; and

(2)

All claims against Defendant Dwyer which claims shall be treated as if brought
pursuant to Bivens vs. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 28 U.S.C. §1331.

The Clerk of the Court is directed to terminate City of Schenectady and City of
Schenectady Police Department.
Dated: October 8, 2015
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
Chief, U.S. District Judge

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