Ulmer v. Allen et al

Filing 105

DECISION AND ORDER: ORDERED, that the 99 Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. § 636(b)(1). ORDERED that 1. Defendants' motion for partial summary judgment (Dkt. No. 89 ) is GRANTED in part and DENIED in part; 2. Summary judgment is GRANTED in its entirety as to defendant Dumas and all claims against him are DISMISSED; 3. Summary judgment is GRANTED as to plaintiff's First Amendment retaliation claims against defendants Bedore and Di bble and those claims are DISMISSED; 4. Summary judgment is DENIED without prejudice as to plaintiff's Eighth Amendment excessive force and failure to protect claims against defendant Bedore; 5. The parties are provided sixty (60) days from t he date of this Decision and Order to conduct additional discovery regarding the identification of the Sergeant alleged by plaintiff to have been involved in the laundry room assault on December 29, 2014; and 6. Defendant Bedore is provided thirty (30) days thereafter to file a second motion for summary judgment on plaintiff's excessive force and failure to protect claims. Signed by Judge David N. Hurd on 3/16/18. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------AKEEM ULMER,
Plaintiff,
-v-

9:15-CV-497
(DNH/TWD)

CORRECTIONAL OFFICER DIBBLE, Franklin
Correctional Facility; JOHN DOES 1-5, Correctional
Officers, Franklin Correctional Facility; SERGEANT
DUMAS, Franklin Correctional Facility; and SERGEANT
BEDORE,
Defendants.
-------------------------------APPEARANCES:
AKEEM ULMER
Plaintiff pro se
2171 Madison Avenue 4B
New York, NY 10037
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Respondent
The Capitol
Albany, NY 12224

CHRISTOPHER J. HUMMEL, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Akeem Ulmer brought this civil rights action pursuant to 42 U.S.C.
§ 1983. On December 4, 2017, the Honorable Therese Wiley Dancks, United States
Magistrate Judge, advised by Report-Recommendation that defendants' motion for partial
summary judgment be granted in part and denied in part. Magistrate Judge Dancks

specifically recommended that summary judgment be granted in its entirety as to
defendant Dumas; that summary judgment be granted as to defendants Bedore and
Dibble on plaintiff's First Amendment retaliation claims; that defendant Bedore be denied
summary judgment without prejudice on plaintiff's Eighth Amendment excessive force and
failure to protect claims; and that the parties be allowed sixty (60) days from the date of this
Decision and Order to conduct additional discovery regarding the identification of the
Sergeant alleged by plaintiff to have been involved in the laundry room assault on December
29, 2014. Finally, Magistrate Judge Dancks recommended that defendant Bedore be given
thirty (30) days thereafter to file a second motion for summary judgment on plaintiff's
excessive force and failure to protect claims. Plaintiff filed timely objections to the ReportRecommendation.
Based upon a de novo review of the portions of the Report-Recommendation to which
plaintiff objected, the Report-Recommendation is accepted and adopted in all respects. See
28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. Defendants' motion for partial summary judgment is GRANTED in part and
DENIED in part;
2. Summary judgment is GRANTED in its entirety as to defendant Dumas and all
claims against him are DISMISSED;
3. Summary judgment is GRANTED as to plaintiff's First Amendment retaliation
claims against defendants Bedore and Dibble and those claim s are DISMISSED;
4. Summary judgment is DENIED without prejudice as to plaintiff's Eighth
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Amendment excessive force and failure to protect claims against defendant Bedore;
5. The parties are provided sixty (60) days from the date of this Decision and Order to
conduct additional discovery regarding the identification of the Sergeant alleged by plaintiff to
have been involved in the laundry room assault on December 29, 2014; and
6. Defendant Bedore is provided thirty (30) days thereafter to file a second motion for
summary judgment on plaintiff's excessive force and failure to protect claims.
IT IS SO ORDERED.

Dated: March 16, 2018
Utica, New York.

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