Gomez v. Graham et al

Filing 91

DECISION AND ORDER: Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the 85 Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). ORDERED that Defendants' motion for summar y judgment pursuant to Federal Rule of Civil Procedure 56 (ECF No. 80 ) is GRANTED in part and DENIED in part as described herein. Defendants Murray, Graham and Wright are DISMISSED from this action. Signed by Judge David N. Hurd on 3/31/17. (served on plaintiff by regular and certified mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------SANTIAGO GOMEZ,
Plaintiff,
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9:14-CV-0201
(DNH/DEP)

HAROLD D. GRAHAM, Superintendent, Auburn
Correctional Facility; D. MURRAY, Correctional
Officer, Auburn Correctional Facility; SERGEANT
HAHN, Adirondack Correctional Facility; J. WRIGHT,
Correctional Officer, Adirondack Correctional Facility;
BORDEN, Correctional Officer, Adirondack Correctional
Facility, NEALE, Correctional Officer, Adirondack
Correctional Facility, FLETCHER, Correctional Officer,
Adirondack Correctional Facility;
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

SANTIAGO GOMEZ
Plaintiff, Pro Se
211 Cerrato Lane, Apt. 2E
Yonkers, NY 10701
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorneys for Defendants
The Capitol
Albany, New York 12224

AIMEE M. PAQUETTE, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Santiago Gomez brought this civil rights action pursuant to 42 U.S.C.
§ 1983. On July 2, 2014, he filed his second amended complaint. See ECF No. 14. On June 16,
2016, the Honorable David E. Peebles, United States Magistrate Judge, advised by ReportRecommendation that the defendants’ motion for summary judgment pursuant to Federal Rule

of Civil Procedure 56 (ECF No. 80) be granted in part and denied in part. No objections to the
Report-Recommendation have been filed.
Based upon a careful review of the entire file and the recommendations of the
Magistrate Judge, the Report-Recommendation is accepted in whole.

See 28 U.S.C.

§ 636(b)(1).
Therefore, it is ORDERED that:
(1) Defendants’ motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 (ECF No. 80) is GRANTED in part and DENIED in part;
(2) The following claims contained in Plaintiff’s Second Amended Complaint are
DISMISSED:
(a) Plaintiff’s conditions of confinement claim regarding the conditions he experienced
at Upstate Correctional Facility and Auburn Correctional Facility;
(b) Plaintiff’s retaliation claims asserted against defendant Murray with respect to the
allegations that Murray threatened to place a weapon on plaintiff, denied plaintiff access to the
law library, and issued plaintiff a false misbehavior report;
(c) Plaintiff’s retaliation and conditions of confinement claims asserted against
defendant Graham;
(d) Plaintiff’s conditions of confinement claims asserted against all defendants;
(e) Plaintiff’s retaliation claim asserted against defendant Hahn based on allegations
that he placed plaintiff on seventy-two hour investigation status in retaliation for filing a grievance;
(f) Plaintiff’s retaliation claim asserted against defendant Wright based on allegations
that he filed a false misbehavior report against plaintiff in retaliation for plaintiff’s grievance filed
against defendant Hahn;
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(3) Defendants’ motion for summary judgment concerning the following claims
contained in the Second Amended Complaint is DENIED and such claims REMAIN for trial:
(a) Plaintiff’s excessive force claim, asserted against defendants Hahn, Neale, Borden
and Fletcher, regarding the incident on May 13, 2014 at Adirondack Correctional Facility;
(b) Plaintiff’s retaliation claim, asserted against defendant Hahn based on allegations
that he threatened plaintiff with bodily harm in retaliation for plaintiff filing a grievance against him
regarding the incident on May 3, 2014 at Adirondack Correctional Facility;
(c) Plaintiff’s retaliation claim, asserted against defendants Hahn, Neale, Borden, and
Fletcher based on allegations that they assaulted him in retaliation for his filing of a grievance
against defendant Hahn regarding the incident on May 3, 2014 at Adirondack Correctional
Facility;
(d) Plaintiff’s retaliation claim, asserted against defendant Hahn based on allegations
that defendant Hahn instructed defendant Wright to issue plaintiff a false misbehavior report out
of retaliatory animus for plaintiff having filed a grievance against him regarding the alleged
assault on May 13, 2014 at Adirondack Correctional Facility;
(4) Defendants Murray, Graham and Wright are DISMISSED from this action; and
(3) The Clerk serve a copy of this Decision and Order upon plaintiff in accordance with
the Local Rules.
IT IS SO ORDERED.

Dated: March 31, 2017
Utica, New York

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