Levesque v. Clinton County Correctional Facility

Filing 89

DECISION and ORDER: Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. 636(b)(1). ORDERED that 1. Defendant Clinton County's motion fo r judgment on the pleadings (Dkt. No. 48 )is GRANTED in part and DENIED in part, as follows: (A) Plaintiff's Title II ADA claim survives; (B) Plaintiff's Title I ADA claim is DISMISSED with prejudice; (C) Plaintiff's municipal liabil ity claim, pursuant to 42 U.S.C. § 1983 is DISMISSED without prejudice to plaintiff's right to file an amended complaint that corrects the pleading defects in that claim, as described in the Report- Recommendation, within thirty (30) day s of the date of this Decision and Order; and (D) Plaintiff's punitive damage claim against defendant Clinton County is DISMISSED with prejudice; 2. Plaintiff's motions for injunctive relief (Dkt. Nos. 46 , 56 , 60 , 67 , 68 and 87 ) are DENIED; 3. Plaintiff's motion for contempt and sanctions (Dkt. No. 80 ) is DENIED; 4. Plaintiff's motion for an order vacating his criminal conviction (Dkt. No. 87 ) isDENIED. (Notice of Compliance Deadline 2/27/2013, Case Review Deadline 3/29/2013). Signed by Judge David N. Hurd on 1/28/2013. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------ANDRE R. LEVESQUE,
Plaintiff,
9:10-CV-0787
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CLINTON COUNTY, also known as Clinton County
Correctional Facility; JOHN DOE, Lieutenant; and
JOHN DOE(S), Corrections Guards,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

ANDRE R. LEVESQUE
Plaintiff Pro Se
35 A Smithfield Blvd. #149
Plattsburgh, NY 12901
LEMIRE JOHNSON, LLC
Attorneys for Defendant Clinton County
P.O. Box 2485
2534 Route 9
Malta, NY 12020

GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
MARY ELIZABETH KISSANE, ESQ.

DAVID N. HURD
United States District Judge
DECISION and ORDER
Plaintiff brought this action pursuant to 42 U.S.C. § 1983 and the Americans with
Disabilities Act. On December 28, 2012, the Honorable David E. Peebles, United States
Magistrate Judge, advised, by Report-Recommendation, that defendant Clinton County's
motion for judgment on the pleadings be granted in part and denied in part; all of plaintiff's

motions for injunctive relief be denied; plaintiff's motion for contempt and sanctions be
denied; and plaintiff's motion for an order vacating his criminal conviction be denied. In
addition, Judge Peebles granted Clinton County's motion for reconsideration; denied
plaintiff's motions for leave to amend his complaint; and denied the remaining motions, all of
which were filed by plaintiff. No objections to the Report-Recommendation were filed.
Based upon a careful review of the entire file and the recommendations of the
Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C.
636(b)(1).
Therefore it is
ORDERED that
1. Defendant Clinton County’s motion for judgment on the pleadings (Dkt. No. 48)
is GRANTED in part and DENIED in part, as follows:
(A) Plaintiff's Title II ADA claim survives;
(B) Plaintiff's Title I ADA claim is DISMISSED with prejudice;
(C) Plaintiff's municipal liability claim, pursuant to 42 U.S.C. § 1983 is
DISMISSED without prejudice to plaintiff's right to file an amended complaint
that corrects the pleading defects in that claim, as described in the ReportRecommendation, within thirty (30) days of the date of this Decision and
Order; and
(D) Plaintiff's punitive damage claim against defendant Clinton County is
DISMISSED with prejudice;
2. Plaintiff's motions for injunctive relief (Dkt. Nos. 46, 56, 60, 67, 68 and 87) are
DENIED;
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3. Plaintiff's motion for contempt and sanctions (Dkt. No. 80) is DENIED;
4. Plaintiff's motion for an order vacating his criminal conviction (Dkt. No. 87) is
DENIED; and
5. The Clerk shall serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.

Dated: January 28, 2013
Utica, New York.

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