Douglas v. Perrara et al
Filing
81
DECISION AND ORDER: ORDERED that 80 Report and Recommendation is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion for partial summary judgment (Dkt. No. 70 ) is GRANTED. ORDERED that the following claims are DISMIS SED from this action: (a) all claims asserted against Defendant Russell, and (b) all claims asserted against Defendants in their official capacities only. The Clerk is directed to terminate Defendant Russell from this action. ORDERED that the foll owing claims REMAIN PENDING in this action: (a) Plaintiff'S claim that Defendants Whittier, Mulligan, Perrara and/or Lawrence subjected him to inadequate prison conditions by depriving him of meals for approximately five consecutive days in De cember 2009, in violation of the Eighth Amendment; (b) Plaintiff's claim that Defendants Whittier, Mulligan, Perrara and Lawrence used excessive force against him, and that Defendant Deluca failed to protect him from the use of that excess ive force, in violation of the Eighth Amendment and New York State common law; and (c) Plaintiff's claim that Defendant Deluca was deliberately indifferent to Plaintiff's serious medical needs (following the assaults) in violation of the Eighth Amendment. ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for appointment of counsel for an appeal is granted. ORD ERED that upon assignment of Pro Bono Counsel, a final pretrial conference with counsel will be scheduled in this action before the undersigned, at which time the Court will schedule a jury trial for Plaintiff's remaining claims as set forth abo ve against Defendants Whittier, Mulligan, Perrara, Lawrence and DeLuca. Counsel are directed to appear at the final pretrial conference with settlement authority from the parties. Signed by Judge Glenn T. Suddaby on 9/27/13. {order served via regulaar mail on plaintiff}(nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
DAVID DOUGLAS, SR.,
Plaintiff,
9:11-CV-1353
(GTS/RFT)
v.
PERRARA, Corrr. Officer, Great Meadow C.F.;
LAWRENCE, Corr. Officer, Great Meadow C.F.;
WHITTIER, Corr. Officer, Great Meadow C.F.;
MULLIGAN, Corr. Officer, Great Meadow C.F.;
DELUCA, Corr. Sergeant, Great Meadow C.F.; and
RUSSEL, Deputy Superintendent, Great Meadow C.F,
Defendants.
_____________________________________________
APPEARANCES:
OF COUNSEL:
DAVID DOUGLAS, SR.
Plaintiff, Pro Se
118 Russell Avenue
Liverpool, New York 13088
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
COLLEEN D. GALLIGAN, ESQ.
Assistant Attorney General
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by David Douglas, Sr.,
(“Plaintiff”) against the six above-captioned New York State correctional employees, are the
following: (1) Defendants’ motion for partial summary judgment (requesting the dismissal of
Plaintiff’s claims against Defendant Russell, and his claims against the remaining Defendants in
their official capacities); and (2) United States Magistrate Judge Randolph F. Treece’s Report-
Recommendation recommending that Defendants’ motion be granted. (Dkt. Nos. 70, 80.)
Neither party filed an objection to the Report-Recommendation, and the deadline by which to do
so has expired. (See generally Docket Sheet.) After carefully reviewing the relevant filings in
this action, the Court can find no clear error in the Report-Recommendation: Magistrate Judge
Treece employed the proper standards, accurately recited the facts, and reasonably applied the
law to those facts. As a result, the Court accepts and adopts the Report-Recommendation for the
reasons stated therein. (Dkt. No. 80.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 80) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for partial summary judgment (Dkt. No. 70) is
GRANTED; and it is further
ORDERED that the following claims are DISMISSED from this action: (a) all claims
asserted against Defendant Russell, and (b) all claims asserted against Defendants in their
official capacities only. The Clerk is directed to terminate Defendant Russell from this action;
and it is further
ORDERED that the following claims REMAIN PENDING in this action: (a) Plaintiff’s
claim that Defendants Whittier, Mulligan, Perrara and/or Lawrence subjected him to inadequate
prison conditions by depriving him of meals for approximately five consecutive days in
December 2009, in violation of the Eighth Amendment; (b) Plaintiff’s claim that Defendants
Whittier, Mulligan, Perrara and Lawrence used excessive force against him, and that Defendant
Deluca failed to protect him from the use of that excessive force, in violation of the Eighth
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Amendment and New York State common law; and (c) Plaintiff’s claim that Defendant Deluca
was deliberately indifferent to Plaintiff’s serious medical needs (following the assaults) in
violation of the Eighth Amendment; and it is further
ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial
only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for
appointment of counsel for an appeal is granted; and it is further
ORDERED that upon assignment of Pro Bono Counsel, a final pretrial conference with
counsel will be scheduled in this action before the undersigned, at which time the Court will
schedule a jury trial for Plaintiff's remaining claims as set forth above against Defendants
Whittier, Mulligan, Perrara, Lawrence and DeLuca. Counsel are directed to appear at the final
pretrial conference with settlement authority from the parties.
Dated: September 27, 2013
Syracuse, New York
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