Rosseter v. Bowen et al

Filing 115

MEMORANDUM-DECISION AND ORDER: ORDERED that the Report-Recommendation and Order (Dkt. No. 109 ) by United States Magistrate Judge Thrse Wiley Dancks is accepted and adopted; and it is further ORDERED that the motion to dismiss (Dkt. No. 51 ) by t he State defendants is granted in part and denied in part as follows: dismissal of all claims against defendants Paul Annetts, Malcom R. Cully, Dr. Colleen Deuel, Sibatu Khafaifa, Dr. Lewis, and David Unger is granted with leave to amend; and di smissal of the claims against Dr. G. Coniglio is denied; and it is further ORDERED that the summary judgment motion (Dkt. No. 88 ) by defendant Robert G. Kercull is granted and all claims against him are dismissed with prejudice; and it is furth er ORDERED that the summary judgment motion (Dkt. No. 90 ) by defendants Stephen Strader and James D. Bowen is granted and all claims against them are dismissed with prejudice; and it is further ORDERED that the action is transferred to the Western District of New York. Signed by Judge Norman A. Mordue on 9/27/2012. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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SHANE ROBERT ROSSETER,
Plaintiff,
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9:10-CV-1097 (NAM/TWD)

PAUL ANNETTS; JAMES D. BOWEN; DR. G.
CONIGLIO; MALCOM R. CULLY; DR. DePHELIP;
DR. COLLEEN DEUEL; DR. ROBERT G. KERCULL;
SIBATU KHAFAIFA; DR. LEWIS; DR. STEPHEN
STRADER; and DAVID UNGER,
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Defendants.
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APPEARANCES:

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SHANE ROBERT ROSSETER
08-A-1728
Cayuga Correctional Facility
P.O. Box 1186
Moravia, New York 13118
Plaintiff pro se
HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York
James Seaman, Esq., Assistant New York State Attorney
The Capitol
Albany, New York 12224
Attorney for Defendants Annetts, Coniglio, Cully, Deuel, Khahaifa,
Lewis, and Unger

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MAYNARD, O’CONNOR, SMITH
& CATALINOTTO, LLP
Thomas G. Daley, Esq., of counsel
6 Tower Place
Albany, New York 12203
Attorney for Defendant Kercull
BAILEY, KEELEHER & JOHNSON, P.C.
Crystal R. Peck, Esq., of counsel
Pine West Plaza 5, Suite 507and all claims against him are dismissed
Washington Avenue Extension
Albany, New York 12205
Attorney for Defendants Bowen and Strader

Hon. Norman A. Mordue, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER

In this pro se action pursuant to 42 U.S.C. § 1983, plaintiff, an inmate in the custody of
New York Department of Corrections and Community Services (“DOCCS”), claims that he has
been denied medical care in every DOCCS facility in which he has been housed since he
allegedly sustained injuries at Saratoga County Correctional Facility in November 9, 2007. The
following motions are before the Court: a motion to dismiss (Dkt. No. 51) by defendants Annetts,
Coniglio, Cully, Deuel, Khahaifa, Lewis, and Unger (collectively, “State defendants”); a motion
for summary judgment (Dkt. No. 88) by defendant Kercull; and a motion for summary judgment
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(Dkt. No. 90) by defendants Bowen and Strader. Upon referral pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge Thérèse Wiley Dancks has
prepared a thorough Report-Recommendation and Order (Dkt. No. 109) recommending as
follows: that the dismissal motion (Dkt. No. 51) by the State defendants be granted with leave to
amend as to defendants Annetts, Unger, Khahaifa, Lewis, Cully and Deuel, and denied as to

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defendant Coniglio; that the summary judgment motion (Dkt. No. 88) by defendant Kercull be
granted on the meritsand all claims against him are dismissed ; that the summary judgment
motion (Dkt. No. 90) by defendants Strader and Bowen be granted on the merits; and that the
action be transferred to the Western District of New York. Magistrate Judge Dancks also denied
without prejudice plaintiff’s motion (Dkt. No. 77) to appoint a medical expert.

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Plaintiff has filed extensive objections (Dkt. No. 114), which the Court has reviewed
carefully. Upon de novo review pursuant to 28 U.S.C. § 636(b)(1)(C), this Court adopts the
Report-Recommendation and Order in its entirety.
It is therefore
ORDERED that the Report-Recommendation and Order (Dkt. No. 109) by United States
Magistrate Judge Thérèse Wiley Dancks is accepted and adopted; and it is further
ORDERED that the motion to dismiss (Dkt. No. 51) by the State defendants is granted in
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part and denied in part as follows: dismissal of all claims against defendants Paul Annetts,
Malcom R. Cully, Dr. Colleen Deuel, Sibatu Khafaifa, Dr. Lewis, and David Unger is granted
with leave to amend; and dismissal of the claims against Dr. G. Coniglio is denied; and it is
further
ORDERED that the summary judgment motion (Dkt. No. 88) by defendant Robert G.
Kercull is granted and all claims against him are dismissed with prejudice; and it is further
ORDERED that the summary judgment motion (Dkt. No. 90) by defendants Stephen
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Strader and James D. Bowen is granted and all claims against them are dismissed with prejudice;
and it is further
ORDERED that the action is transferred to the Western District of New York; and it is
further
ORDERED that the Clerk of the Court is directed to serve copies of this Memorandum-

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Decision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
September 27, 2012
Syracuse, New York

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