Shepherd v. Fischer et al

Filing 202

DECISION AND ORDER: ORDERED that Plaintiff's objections to the report and recommendation, dkt. # 200 are hereby OVERRULED, and that the Report-Recommendation of Magistrate Judge Peebles, dkt. # 199 , is hereby ADOPTED, as follows: 1. Def endants' motion to sever, dkt. # 197 , is hereby GRANTED; and 2. Plaintiff's remaining claims in this action are hereby SEVERED, and the Court will conduct three distinct trials in this matter in the following fashion: a. The first trial shall address all claims and Defendants associated with Clinton Correctional Facility, as well as the medical indifference claim against Dr. Amatucci to include defendants from Downstate Correctional Facility, including Defendants Superintendent Art us, Dr. Amatucci, R.N. Lashway and Sgt. Menard; b. The second trial shall address all claims and defendants associated with events at the Five Points Correctional Facility, as against Defendants Sgt. Barber, C.O. Bower, C.O. Carlee, C.O. Cioffa, S gt. Jones, C.O. Prebalick, and Hearing Officer Ramus, as well as Plaintiffs due process claim against Deputy of Programming Cuningham at Green Haven Correctional Facility and against Defendant Norman Bezio; c. The third trial shall address all rema ining claims, including those arising from Upstate Correctional Facility and the excessive force claim against Officer Cambria based upon events at an indeterminate location. That trial will include the following defendants, C.O. Cambria, C.O. Belsio , Deputy Superintendent Colvin, R.N. Holmes, R.N. Fairchild, R.N. Atkinson, R.N. Chesbrough, Superintendent Lempke, Superintendent Rock, Sgt. Rowe, and C.O. Rozwell; d. Plaintiff's claims against Defendants Fischer and Wright are hereby DISMISS ED for lack of personal involvement; and e. Plaintiff's claims against Defendants Bellnier, Clemons, Johnson, Parmer, Perez, Smith, Thomas, Weinstock, and Weisman are hereby DISMISSED pursuant to the court's earlier order dismissing Plainti ff's deliberate medical indifference claims against them. However, Defendants' objections to the Report-Recommendation, dkt. # 200, are OVERRULED without prejudice to the extent they seek to have the Court dismiss any claims against Defend ant Amber Hawthorne because Hawthorne was not named in any Complaint and never served in the action. The status of Dr. Hawthorne in this matter is unclear. Defendants are incorrect in claiming that Hawthorne was never named in any Complaint in this a ction. Review of the record indicates that Defendant Dr. Hawthorne was named in both the original Complaint, dkt. # 2, and the Amended Complaint, dkt. # 45. It is unclear whether Dr. Hawthorne was ever served with process or either Complaint. The re cord reveals that service was returned un-executed on Dr. Hawthorne on July 29, 2011, before Plaintiff filed his Amended Complaint. See dkt. # 39. It is incumbent upon Plaintiff, who is now represented by pro bono counsel in this matter, see dkt. # 196, to address the status of Dr. Hawthorne in this matter before the case proceeds to trial. It is therefore ORDERED that the Plaintiff inform the Court within FOURTEEN (14) days to the date of this Order as to the status of Dr. Hawthorne in this m atter. Failure to respond to the Court's Order within the time specified will cause the Court to take appropriate action with respect to Defendant Hawthorne. Signed by Senior Judge Thomas J. McAvoy on 9/22/15. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
EON SHEPHERD,
Plaintiff,
vs.

9:10-CV-1524

BRIAN FISCHER, et al.,
Defendants.
___________________________________________
Thomas J. McAvoy,
Sr. U.S. District Judge

DECISION & ORDER
This pro se civil rights action pursuant to 42 U.S.C. § 1983 was referred to the Hon.
David E. Peebles, United States Magistrate Judge, for a Report-Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
The Report-Recommendation, dated August 17, 2015, recommended that the
Defendants’ motion to sever the trial in this case be granted, that the remaining claims
should be heard in three separate trials, and that Plaintif f’s claims against certain of the
Defendants be dismissed.
Both parties filed timely objections to the Report-Recommendation. Plaintiff
argued, pro se, that severing the trial was inappropriate because all claims in this case
essentially arose from the same set of operative facts. Defendants do not object to
severing the trial. Instead, Defendants argue that Defendant Dr. Amber Hawthorne should

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be dismissed from the action because she was neither named in or served with any of the
Complaints Plaintiff filed in this action, has not been served with process, and has not
been represented by any attorney in this matter. See dkt. # 201.
When objections to a magistrate judge’s Report-Recommendation are lodged, the
Court makes a “de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” See 28 U.S.C. §
636(b)(1). After such a review, the Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with instructions.”
Id.
Having reviewed the record de novo and having considered the issues raised in the
parties’ objections, this Court has determined to accept and adopt Magistrate Judge’s
Peebles recommendation that Defendants’ motion that trial in this matter be severed for
the reasons stated in the report and recommendation.
It is therefore
ORDERED that Plaintiff’s objections to the report and recommendation, dkt. # 200
are hereby OVERRULED, and that the Report-Recommendation of Magistrate Judge
Peebles, dkt. # 199, is hereby ADOPTED, as follows:
1. Defendants’ motion to sever, dkt. # 197, is hereby GRANTED; and
2. Plaintiff’s remaining claims in this action are hereby SEVERED, and the Court
will conduct three distinct trials in this matter in the following fashion:

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a. The first trial shall address all claims and Defendants associated with
Clinton Correctional Facility, as well as the medical indifference claim against
Dr. Amatucci to include defendants from Downstate Correctional Facility,
including Defendants Superintendent Artus, Dr. Amatucci, R.N. Lashway and
Sgt. Menard;
b. The second trial shall address all claims and defendants associated with
events at the Five Points Correctional Facility, as against Defendants Sgt.
Barber, C.O. Bower, C.O. Carlee, C.O. Cioffa, Sgt. Jones, C.O. Prebalick,
and Hearing Officer Ramus, as well as Plaintiff’s due process claim against
Deputy of Programming Cuningham at Green Haven Correctional Facility
and against Defendant Norman Bezio;
c. The third trial shall address all remaining claims, including those arising
from Upstate Correctional Facility and the excessive force claim against
Officer Cambria based upon events at an indeterminate location. That trial
will include the following defendants, C.O. Cambria, C.O. Belsio, Deputy
Superintendent Colvin, R.N. Holmes, R.N. Fairchild, R.N. Atkinson, R.N.
Chesbrough, Superintendent Lempke, Superintendent Rock, Sgt. Rowe, and
C.O. Rozwell;
d. Plaintiff’s claims against Defendants Fischer and Wright are hereby
DISMISSED for lack of personal involvement; and
e. Plaintiff’s claims against Defendants Bellnier, Clemons, Johnson, Parmer,
Perez, Smith, Thomas, Weinstock, and Weisman are hereby DISMISSED

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pursuant to the court’s earlier order dismissing Plaintiff’s deliberate medical
indifference claims against them.
However, Defendants’ objections to the Report-Recommendation, dkt. # 200, are
OVERRULED without prejudice to the extent they seek to have the Court dismiss any
claims against Defendant Amber Hawthorne because Hawthorne was not named in any
Complaint and never served in the action. The status of Dr. Hawthorne in this matter is
unclear. Defendants are incorrect in claiming that Hawthorne was never named in any
Complaint in this action. Review of the record indicates that Defendant Dr. Hawthorne
was named in both the original Complaint, dkt. # 2, and the Amended Complaint, dkt. #
45. It is unclear whether Dr. Hawthorne was ever served with process or either Complaint.
The record reveals that service was returned un-executed on Dr. Hawthorne on July 29,
2011, before Plaintiff filed his Amended Complaint. See dkt. # 39. It is incumbent upon
Plaintiff, who is now represented by pro bono counsel in this matter, see dkt. # 196, to
address the status of Dr. Hawthorne in this matter before the case proceeds to trial.
It is therefore ORDERED that the Plaintiff inform the Court within FOURTEEN (14)
days to the date of this Order as to the status of Dr. Hawthorne in this matter. Failure to
respond to the Court’s Order within the time specified will cause the Court to take
appropriate action with respect to Defendant Hawthorne.

IT IS SO ORDERED.
Dated: September 22, 2015

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