Bell v. Galani et al

Filing 74

DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 65 ) is APPROVED and ADOPTED in its ENTIRETY; and it is further ORDERED, that Defendants' Motion to dismiss for failure to state a claim (Dkt. No. 47 ) is GRANTED in p art and DENIED in part; and it is further ORDERED, that Defendants Gillani, Thomas, Daugherty, Bean, and Brennan submit an answer to Plaintiff's Eighth Amendment claims; and it is further ORDERED, that Plaintiff's Eighth Amendment claims against Defendants Waldron and Sawyer are DISMISSED with leave to amend; and it is further ORDERED, that Plaintiff's ADA claims against Defendant Office of Mental Health ("OMH") and Defendant Sawyer are DISMISSED with leave to amen d; and it is further ORDERED, that Plaintiff's ADA claims against Defendants Gillani, Thomas, Waldron, Daugherty, Bean, Brennan and Sawyer in their individual capacities are DISMISSED without leave to amend; and it is further ORDERED, th at Plaintiff's § 1983 claims for money damages against Defendant OMH and Defendant Sawyer in his official capacity are DISMISSED without leave to amend; and it is further ORDERED, that Plaintiff identify and serve Defendant John Doe within sixty (60) days of the date of this Decision and Order. Signed by Senior Judge Lawrence E. Kahn on 3/27/2012. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LEWIS BELL, SR.,
Plaintiff,
9:10-cv-01577 (LEK/TWD)1

-against-

DR. SOHAIL A. GILLANI; J. THOMAS,
Therapist; J. WALDRON, Unit Chief;
OFFICE OF MENTAL HEALTH; PAUL
DAUGHERTY; JASON BEAN; LYDIA
BRENNAN; JOHN DOE, Psychiatrist; and
DONALD SAWYER,
Defendants.
___________________________________
DECISION and ORDER
This matter comes before the Court following a Report-Recommendation filed on February
9, 2012, by the Honorable George H. Lowe, United States Magistrate Judge, pursuant to 28 U.S.C. §
636(b) and L.R. 72.3(c) of the Northern District of New York. Dkt. No. 65 (“Report-Rec.”). The
Clerk has sent the entire file to the undersigned, including the Objections by Plaintiff Lewis Bell, Sr.
(“Plaintiff”), which were filed on March 12, 2012. Dkt. No. 73 (“Objections”).
The Court is to “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b). “A
[district] judge . . . may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. Where, however, an objecting “party makes
only conclusory or general objections, or simply reiterates his original arguments, the Court reviews

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This case was reassigned to the Honorable Therese Wiley Dancks, United States Magistrate
Judge, by Decision and Order of Chief Judge Gary L. Sharpe dated February 10, 2012. Dkt. No. 66.

the Report and Recommendation only for clear error.” Farid v. Bouey, 554 F. Supp. 2d 301, 307
(N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007))
(citations and quotations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at
*2-3 (N.D.N.Y. Sept. 22, 1997).
A review of the Objections shows that they consist almost entirely of reiterations of
Plaintiff’s original allegations in his Complaint. Compare Obj. at 2-5 with Second Amended
Complaint (Dkt. No. 31) at 6-14. The Court has therefore reviewed these portions of Judge Lowe’s
Report-Recommendation for clear error, and finds none.
Plaintiff also appears to seek clarification as to what steps he is required to take at this
juncture. See Obj.; Dkt. Nos. 70, 71. First, Plaintiff is advised that his Second Amended Complaint
may proceed against Defendants Sohail Gillani, J. Thomas, Paul Daugherty, Jason Bean, and Lydia
Brennan. Second, Plaintiff is permitted to submit an amended complaint against Defendants J.
Waldron (“Waldron”) and Donald Sawyer (“Sawyer”), but he is cautioned that any such amended
complaint will also be dismissed against Defendants Waldron and Sawyer if he does not allege more
facts to support a showing that they: (1) directly participated in the alleged violation(s); (2) failed to
remedy the violation(s) after learning of the violation(s) through a report or appeal; (3) created, or
allowed to continue, a policy or custom under which the violation(s) occurred; (4) were grossly
negligent in managing subordinates who caused the violation(s); or (5) exhibited deliberate
indifference to the rights of inmates by failing to act on information indicating that the violation(s)
was or were occurring. Report-Rec. at 9-10 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)). Third, Plaintiff may submit an amended complaint against Defendant Office of Mental
Health (“OMH”), but that too will be dismissed if he cannot allege facts plausibly suggesting that he
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was “excluded from participation in or denied the benefits of” OMH’s “services, programs or
activities or was otherwise discriminated against” by OMH on the basis of his disability. ReportRec. at 19 (quoting Goonewardena v. N.Y., 475 F. Supp. 2d 310, 324 (S.D.N.Y. 2007)). Fourth,
Plaintiff may not submit an amended complaint that seeks money damages against Defendant OMH
or Defendant Sawyer in his official capacity. Report-Rec. at 16-18. Fifth, Plaintiff may not submit
an amended complaint that alleges violations of the Americans with Disabilities Act (“ADA”)
against Defendants Gillani, Thomas, Waldron, Daugherty, Bean, Brennan, or Sawyer in their
individual capacities. Id. at 18. Finally, Plaintiff must identify and serve Defendant John Doe
within sixty days of the date of this Decision and Order.
Upon review of the record, the Court concludes that the Report-Recommendation should be
approved and adopted for the reasons stated therein.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 65) is APPROVED and
ADOPTED in its ENTIRETY; and it is further
ORDERED, that Defendants’ Motion to dismiss for failure to state a claim (Dkt. No. 47) is
GRANTED in part and DENIED in part; and it is further
ORDERED, that Defendants Gillani, Thomas, Daugherty, Bean, and Brennan submit an
answer to Plaintiff’s Eighth Amendment claims; and it is further
ORDERED, that Plaintiff’s Eighth Amendment claims against Defendants Waldron and
Sawyer are DISMISSED with leave to amend; and it is further
ORDERED, that Plaintiff’s ADA claims against Defendant Office of Mental Health
(“OMH”) and Defendant Sawyer are DISMISSED with leave to amend; and it is further
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ORDERED, that Plaintiff’s ADA claims against Defendants Gillani, Thomas, Waldron,
Daugherty, Bean, Brennan and Sawyer in their individual capacities are DISMISSED without leave
to amend; and it is further
ORDERED, that Plaintiff’s § 1983 claims for money damages against Defendant OMH and
Defendant Sawyer in his official capacity are DISMISSED without leave to amend; and it is
further
ORDERED, that Plaintiff identify and serve Defendant John Doe within sixty (60) days of
the date of this Decision and Order; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.

DATED:

March 27, 2012
Albany, New York

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