Thon v. Grimshaw et al

Filing 131

SUMMARY ORDER: ORDERED that Magistrate Judge Davie E. Peebles Report and Recommendation (Dkt. No. 127 ) is ADOPTED in its entirety. ORDERED that defendants' motion for partial summary judgment (Dkt. No. 110 ) is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to Thon's deliberate indifference claims against Johnson, Koenigsmann, and LaValley; and DENIED in all other respects. ORDERED that this matter is now trial ready and a trial order will issue is due course. ORDER ED that the only claims remaining for trial are an: (1) Eighth Amendment excessive force claim against defendants C. Grimshaw, Tod Poupore, Betsy Whelden, Joseph Rock, Dan Phillips, and Jason Lucia; and (2) Eighth Amendment deliberate indifference to serious medical need claim against Grimshaw, Poupoure, Rock, and defendant Kang Lee. Signed by Senior Judge Gary L. Sharpe on 10/13/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
FRANK THON,
Plaintiff,

9:13-cv-898
(GLS/DEP)

v.
C. GRIMSHAW et al.,
Defendants.
________________________________
SUMMARY ORDER
Pending are plaintiff pro se Frank Thon’s objections to a Report and
Recommendation (R&R) issued by Magistrate Judge David E. Peebles,
which recommends that defendants’ motion for partial summary judgment
be granted in part and denied in part. (Dkt. Nos. 110, 127, 130.) For the
reasons that follow, the R&R is adopted in its entirety.
Without much more, Thon contends first that Judge Peebles “fail[ed]
to state that on April 23, 2012 . . . that [d]efendant[s Vonda] Johnson [and
Carl Koenigsmann were] named in a Clinton Correctional Facility Inmate
Grievance which, very clearly stated that [Thon] was experiencing
‘shortness of breath’, ‘tightness in chest’ as well as ‘chest pains.’” (Dkt.
No. 130 at 2-3.) Next, Thon takes issue with the R&R’s failure “to state

that [w]antonness does not have a fixed meaning (as suggested by [the]
R&R . . .).” (Id. at 4-5.)
Without directly explaining why, Thon also objects to certain factual
conclusions about defendant Thomas LaValley. (Id. at 6-9.) Thon appears
to argue that LaValley failed to undertake an adequate investigation of his
grievances and had a greater responsibility for remedying Thon’s health
concerns because LaValley was the superintendent of the facility in which
Thon was incarcerated. (Id.)1 Finally, Thon faults the R&R’s conclusion
that Koenigsmann was not personally involved, (Dkt. No. 127 at 28); it
seems that Thon is of the opinion that Koenigsmann’s status as a
supervisor compels a different determination as to personal involvement,
(Dkt. No. 130 at 10).
While some of Thon’s objections are specific and trigger de novo
review, see Almonte v. N.Y.S. Div. of Parole, No. Civ. 904CV484, 2006 WL
149049, at *6-7 (N.D.N.Y. Jan. 18, 2006), a portion of them are irrelevant
to the ultimate recommendation and the balance are not compelling. The

1

Thon generically asserts that qualified immunity shields none of the defendants
remaining in this action. (Dkt. No. 130 at 9.) Because the R&R did not recommend dismissal
on the basis of qualified immunity, (Dkt. No. 127 at 32-35), no consideration of this “objection”
has been made.

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court adopts the reasoning and logic of the R&R entirely and sees no
reason to restate its factual recitation or legal conclusions. After careful
review and consideration, the R&R is adopted in its entirety.
Accordingly, it is hereby
ORDERED that Magistrate Judge Davie E. Peebles Report and
Recommendation (Dkt. No. 127) is ADOPTED in its entirety; and it is
further
ORDERED that defendants’ motion for partial summary judgment
(Dkt. No. 110) is GRANTED IN PART and DENIED IN PART as follows:
GRANTED as to Thon’s deliberate indifference claims against
Johnson, Koenigsmann, and LaValley; and
DENIED in all other respects; and it is further
ORDERED that this matter is now trial ready and a trial order will
issue is due course; and it is further
ORDERED that the only claims remaining for trial are an: (1) Eighth
Amendment excessive force claim against defendants C. Grimshaw, Tod
Poupore, Betsy Whelden, Joseph Rock, Dan Phillips, and Jason Lucia;
and (2) Eighth Amendment deliberate indifference to serious medical need
claim against Grimshaw, Poupoure, Rock, and defendant Kang Lee; and it
3

is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
October 13, 2016
Albany, New York

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