Trapani v. Cuomo et al

Filing 45

DECISION AND ORDER: ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 44 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion to dismiss Plaintiff's Complaint for failure to comply with a Court Order pursuant to Fed. R. Civ. P. 41(b) (Dkt. No. 38 ) is DENIED. ORDERED that Defendants' motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 38 ) is GRANTED in part and DENIED in part in the following respects: (1) Plaintiff's Eighth Amendment excessive force claims against Defendants Steinberg, Vantassell and Elser arising from the incident on February 8, 20 11, are DISMISSED, and those individuals are TERMINATED as Defendants in this action; but (2) Plaintiff's three remaining claims (i.e., Plaintiff's Eighth Amendment excessive force claims against Defendants Wright, Clark, Novak, Reilly and Wiwsianyk arising from the incident of April 4, 2011, his First Amendment retaliation claim against Defendant Coryer, and his and Fourteenth Amendment due process claim against Defendant Iqbal) SURVIVE Defendants' motion to dismiss. Signed by Chief Judge Glenn T. Suddaby on 7/15/16. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DAMIAN TRAPANI,
Plaintiff,
v.

9:14-CV-0683
(GTS/CFH)

M. CORYER, Nurse Admin., Auburn Corr. Facility;
NICHOLAS WIWSIANYK, Corr. Officer, Auburn
Corr. Facility; SEAN REILLY, Corr. Officer, Auburn
Corr. Facility; GARY STEINBERG, Corr. Officer,
Auburn Corr. Facility; BRYAN VANTASSELL, Corr.
Officer, Auburn Corr. Facility; JAMES ELSER, Corr.
Officer, Auburn Corr. Facility; J. WRIGHT, Sergeant,
Auburn Corr. Facility; T. CLARK, Corr. Officer,
Auburn Corr. Facility; C. NOVAK, Corr. Officer,
Auburn Corr. Facility; JOHN DOE #7, Lieutenant,
Auburn Corr. Facility; JOHN DOE #10, Captain,
Auburn Corr. Facility; and MOHAMMAD MASUD
IQBAL, Psychiatrist, Auburn Corr. Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

DAMIAN TRAPANI, No. 32911
Plaintiff, Pro Se
Schenectady County Jail
320 Veeder Avenue
Schenectady, New York 12307
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
GLENN T. SUDDABY, Chief United States District Judge

NICOLE E. HAIMSON, ESQ.
Assistant Attorney General

DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Damian
Trapani (“Plaintiff”) against the twelve above-captioned employees of the New York State
Department of Corrections and Community Supervision (“Defendants”), are Defendants’ motion
to dismiss Plaintiff’s Complaint for failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. P. 12(b)(6) and for failure to comply with a Court Order pursuant to
Fed. R. Civ. P. 41(b), and United States Magistrate Judge Christian F. Hummel’s ReportRecommendation recommending that Defendants’ motion be granted in part and denied in part.
(Dkt. Nos. 38, 44.) None of the parties have filed an Objection to the Report-Recommendation,
and the deadline in which to do so has expired. (See generally Docket Sheet.) After carefully
reviewing the relevant papers herein, including Magistrate Judge Hummel’s ReportRecommendation, the Court can find no clear-error in that thorough Report-Recommendation.1
Magistrate Judge Hummel has employed the proper standards, accurately recited the facts, and
reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted
and adopted in its entirety for the reasons set forth therein.2
1

When no objection is made to a report-recommendation, the Court subjects that
report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition. When performing such a “clear error” review, “the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1
(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a
magistrate judge’s] report to which no specific objection is made, so long as those sections are
not facially erroneous.”) (internal quotation marks omitted).
2

The Court notes that it agrees that Plaintiff filed his excessive force claim against
Defendants Steinberg, Vantassell and Elser eleven days late for slightly different reasons than
those offered by Magistrate Judge Hummel. Specifically, by the Court’s count, 103 days (not
101 days) elapsed between February 18, 2011, and June 1, 2011, meaning that the statute of
limitations appears to have expired on May 22, 2014 (not May 20, 2014). However, while
Plaintiff’s Complaint appears to be dated June 1, 2014, his Civil Cover Sheet is clearly dated
June 2, 2014, indicating that he initially submitted his package for mailing on Monday, June 2,
2014 (not on Sunday, June 1, 2014). (Dkt. No. 1, Attach. 2.) Even if the Court’s calculations
2

ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 44) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion to dismiss Plaintiff’s Complaint for failure to
comply with a Court Order pursuant to Fed. R. Civ. P. 41(b) (Dkt. No. 38) is DENIED; and it is
further
ORDERED that Defendants’ motion to dismiss Plaintiff’s Complaint for failure to state
a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 38) is
GRANTED in part and DENIED in part in the following respects:
(1) Plaintiff’s Eighth Amendment excessive force claims against Defendants
Steinberg, Vantassell and Elser arising from the incident on February 8, 2011, are
DISMISSED, and those individuals are TERMINATED as Defendants in this
action; but
(2) Plaintiff’s three remaining claims (i.e., Plaintiff’s Eighth Amendment
excessive force claims against Defendants Wright, Clark, Novak, Reilly and
Wiwsianyk arising from the incident of April 4, 2011, his First Amendment
retaliation claim against Defendant Coryer, and his and Fourteenth Amendment
due process claim against Defendant Iqbal) SURVIVE Defendants’ motion to
dismiss.
Dated: July 15, 2016
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

are in error, however, eleven days elapsed between the expiration of the limitations period and
the filing of Plaintiff’s referenced excessive force claim, according to Magistrate Judge
Hummel’s calculations.
3