Galberth v. Durkin, et al

Filing 134

ORDER adopting 128 Report and Recommendations; granting in part and denying in part 91 Motion for Summary Judgment. Defendants Russell, Barnes, Hamelin, Tuller, and Durkin are DISMISSED as Defendants from this action. Signed by Judge Brenda K. Sannes on 9/27/17. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
GREGORY GALBERTH,
Plaintiff,
v.
9:14-CV-115 (BKS/ATB)
C. DURKIN, Sergeant, Clinton Correctional
Facility, et al.,
Defendants.
________________________________________________
Appearances:
Gregory Galberth
03-A-0661
Great Meadow Correctional Facility
P.O. Box 51
Comstock, NY 12821
Plaintiff, pro se
Denise P. Buckley, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
Pro se Plaintiff Gregory Galberth brought this action against Defendants C. Durkin,
Shawn P. Hamelin, B. Plumbly, R. Sears, W. Bisso, R. Russell, E. Barnes and F. Tuller under 42
U.S.C. § 1983 alleging that Defendants violated his constitutional rights in four separate
excessive force incidents while the Plaintiff was an inmate at the Clinton Correctional Facility.
Dkt. No. 1. On December 1, 2016, Defendants filed a motion for summary judgment seeking

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dismissal of the complaint in its entirety. Dkt. No. 91. Plaintiff filed a response in opposition to
the motion on August 21, 2017 (Dkt. No. 124), and Defendants filed a reply on August 28, 2017
(Dkt. No. 125). This matter was referred to United States Magistrate Judge Andrew T. Baxter
who, on August 31, 2017, issued an Order and Report-Recommendation recommending that
Defendants’ motion for summary judgment be granted with respect to the excessive force claims
as against defendants Russell, Barnes, Hamelin, Tuller, Sears, Bisso, and Durkin in connection
with the November 5, 2011 use of force, and otherwise denied. Dkt. No. 128. Magistrate Judge
Baxter advised the parties that, under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), 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. 128, at 19. 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 it in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 128) is ADOPTED in its
entirety; and it is further
ORDERED that Defendant’s summary judgment motion (Dkt. No. 91) is GRANTED
only with respect to the excessive force claims as against Defendants Russell, Barnes, Hamelin,
Tuller, Sears, Bisso, and Durkin in connection with the November 5, 2011 use of force and
otherwise DENIED; and it is further

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ORDERED that Defendants Russell, Barnes, Hamelin, Tuller, and Durkin are
DISMISSED as Defendants from this action; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: September 27, 2017
Syracuse, New York

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