Canty v. Prack et al

Filing 66

DECISION AND ORDER accepting and adopting # 65 Magistrate Judge Peebles' Report and Recommendation in its entirety. Defendant's # 61 Motion for Partial Summary Judgment is granted, and Plaintiff's First Amendment retaliation claim s against Defendants Allen, Brooks, Drollette, Fessette, Frenya and Tarallo are dismissed, and those six defendants are terminated as parties to this action. The remaining claim in this action is Plaintiff's Eighth Amendment excessive-force clai m against Defendants Heath, Martin, Tamer, Venne and Sweeney. It is ordered that Pro Bono counsel be appointed for Plaintiff for purposes of trial only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for appointmen t of counsel for an appeal is granted. Upon assignment of pro bono counsel, a pretrial conference with counsel will be scheduled at which time the Court will schedule trial. Signed by Chief Judge Glenn T. Suddaby on 12/1/16. (Copy served upon Pro Se Plaintiff via regular mail and therefore, pursuant to Fed.R.Civ.P. 6(d), an additional 3 (three) days for service may be allowed) (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
MOSHE CINQUE CANTY,
Plaintiff,
9:14-CV-1097
(GTS/DEP)

v.
ALLEN, Corr. Lieutenant/Watch Commander;
T. TAMER, Corr. Sergeant; S. SWEENEY, Corr.
Sergeant; PAUL FESSETTE, Corr. Sergeant;
BROOKS, Corr. Sergeant; D. VENNE, Corr.
Officer; L. MARTIN, Corr. Officer; C. HEATH,
Corr. Officer; TARALLO, Corr. Officer; FRENYA,
Corr. Officer; and E. DROLLETTE, Corr. Officer,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

MOSHE CINQUE CANTY, 99-A-6830
Plaintiff, Pro Se
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, New York 12589
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

ORIANA L. CARRAVETTA, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Moshe
Cinque Canty (“Plaintiff”) against the above-captioned employees of the New York State
Department of Corrections and Community Supervision (“Defendants”), are Defendants’ motion
for partial summary judgment seeking dismissal of Plaintiff’s First Amendment retaliation

claims and United States Magistrate Judge David E. Peebles’ Report-Recommendation
recommending that Defendants’ motion be granted. (Dkt. Nos. 61, 65.) None of the parties
have filed objections 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 Peebles
thorough Report-Recommendation, the Court can find no clear-error in the ReportRecommendation:1 Magistrate Judge Peebles 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. (Dkt. No. 65, at Part II.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 65) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for partial summary judgment (Dkt. No. 61) is
GRANTED; and it is further
ORDERED that Plaintiff’s First Amendment retaliation claims against Defendants
Allen, Brooks, Drollette, Fessette, Frenya, and Tarallo are DISMISSED, and those six
Defendants are TERMINATED as parties in this action; and it is further

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).
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ORDERED that REMAINING in this action are Plaintiff’s Eighth Amendment
excessive-force claim against Defendants Heath, Martin, Tamer, Venne and Sweeney; and it is
further
ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial
only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for
appointment of counsel for an appeal is granted; and it is further
ORDERED that upon assignment of Pro Bono Counsel, a pretrial conference with
counsel will be scheduled in this action, at which time the Court will schedule for trial Plaintiff's
Eighth Amendment excessive force claim against Defendants Heath, Martin, Tamer, Venne and
Sweeney. The parties are directed to appear at that pretrial conference with settlement authority.

Dated: December 1, 2016
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

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