Povoski v. Lacy et al

Filing 141

ORDER adopting 139 Report and Recommendations; granting in part and denying in part 132 Motion for Summary Judgment. The Clerk is directed to terminate Capt. Lacy, C.O. Summo, Dir. Prack, Supt. LaValley, C.O. Mahuta, C.O. Tamer, C.O. Kelly, C.O. Crusie, and Lieut. Allan as Defendants in this case. Signed by Judge Brenda K. Sannes on 1/17/18. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
FRANK J. POVOSKI, JR.,
Plaintiff,
v.

9:14-CV-0097 (BKS/CFH)

STEVEN LACY, et al.,
Defendants.
________________________________________________
Appearances:
Frank J. Povoski, Jr.
Rochester, NY 14622
Plaintiff, pro se
Brian W. Matula, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Frank Povoski, Jr., a former New York State inmate, commenced this action
under 42 U.S.C. § 1983 alleging that the Defendants violated his constitutional rights under the
First, Eighth, and Fourteenth Amendments during his confinement at the Clinton Correctional
Facility. Dkt. No. 106. On April 7, 2017, Defendants filed a motion for summary judgment,
seeking dismissal of the entirety of the Plaintiff’s Second Amended Complaint. Dkt. No. 132.
Plaintiff did not respond to the motion even though he filed two requests for extensions of time,
which were granted. Dkt. Nos. 136 and 138. This matter was referred to United States

Magistrate Judge Christian F. Hummel who, on December 13, 2017, issued a ReportRecommendation and Order recommending that Defendants’ motion for summary judgment be
granted in part and denied in part. Dkt. No. 139. Magistrate Judge Hummel advised the parties
that under 28 U.S.C. § 636(b)(1), they had fourteen days within which to file written objections
to the Report, and that the failure to object to the Report within fourteen days would preclude
appellate review. Dkt. No. 139, pp. 42-43. No objections to the Report-Recommendation have
been filed.
As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear
error and found none, the Court adopts the Report-Recommendation in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 139) is ADOPTED in its
entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 132) is
GRANTED IN PART AND DENIED IN PART; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 132) is
GRANTED with respect to the following claims, and that the following claims are DISMISSED
WITH PREJUDICE:
(1) Plaintiff’s Fourteenth Amendment due process claim against Capt. Lacy, C.O.
Summo, Dir. Prack, and Supt. LaValley;

2

(2) Plaintiff’s First Amendment retaliation claim against Capt. Lacy, Supt. LaValley,
C.O. Mahuta, C.O. Tamer, C.O. Kelly, C.O. Crusie, and Lieut. Allan;
(3) Plaintiff’s First Amendment access to the courts claim against Capt. Lacy, C.O.
Kelly, C.O. Crusie, C.O. Mahuta, Supt. LaValley, and Lieut. Allan;
(4) Plaintiff’s § 1983 conspiracy claims against Capt. Lacy, Supt. LaValley, C.O.
Mahuta, C.O. Tamer, C.O. Kelly, C.O. Crusie, Lieut. Allan, C.O. Pray, and Sgt.
Archambault;
(5) Plaintiff’s Eighth Amendment claim against Capt. Lacy, Lieut. Allan, and Supt.
LaValley for improper SHU conditions; and
(6) Plaintiff’s Eighth Amendment failure to intervene claim against Lieut. Allan; and it
is further
ORDERED that the Defendants’ motion for summary judgment is DENIED as to the
following claims, which will be scheduled for trial:
(1) Plaintiff’s First Amendment retaliation claim against C.O. Pray and Sgt.
Archambault;
(2) Plaintiff’s Eighth Amendment excessive force claim against C.O. Pray; and
(3) Plaintiff’s Eighth Amendment failure to intervene claim against Sgt. Archambault;
and it is further
ORDERED that the Clerk is directed to terminate Capt. Lacy, C.O. Summo, Dir. Prack,
Supt. LaValley, C.O. Mahuta, C.O. Tamer, C.O. Kelly, C.O. Crusie, and Lieut. Allan as
Defendants in this case; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with

3

the Local Rules.
IT IS SO ORDERED.
Dated: January 17, 2018

4