Fann v. Graham et al

Filing 136

DECISION AND ORDER: The 128 Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). ORDERED that 1. Plaintiff's 119 motion for summary judgment is DENIED in its entirety; 2. Defendants' 120 motion for summary j udgment is GRANTED in part and DENIED in part; 3. Plaintiff's supervisory liability claims against defendants Fagan and Graham are DISMISSED with prejudice; 4. Plaintiff's Fourteenth Amendment due process claim against defendant Ouimette i s DISMISSED with prejudice; 5. Plaintiff's Fourth Amendment unreasonable search claims against defendants Cornell and Steinberg are DISMISSED with prejudice; 6. Defendants' motion for summary judgment is DENIED as to plaintiff's Fir st Amendment retaliation claim against defendant Thomas; and 7. Defendants' motion for summary judgment is DENIED without prejudice as to plaintiff's First and Fourth Amendment claims against defendants Cornell, Lovejoy, Schramm, and Ederer for the incidents occurring on July 9, 2015, to defendants renewing this argument and requesting a hearing to assess whether plaintiff exhausted his administrative remedies. Signed by Judge David N. Hurd on 3/19/18. (served on plaintiff by regular and certified mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------JERMAINE FANN,
Plaintiff,
-v-

9:15-CV-1339
(DNH/CFH)

H. GRAHAM, Superintendent Auburn
Correctional Facility; LT. OUIMETTE1,
Lieutenant, Auburn Correctional Facility; SGT.
EDERER, Sergeant, Auburn Correctional
Facility; M. CORNELL, Correctional Officer,
Auburn Correctional Facility; LOVEJOY,
Correctional Officer, Auburn Correctional
Facility; STEINBERG, Correctional Officer,
Auburn Correctional Facility, formerly known as
Stienberg; C. THOMAS, Correctional Officer,
Auburn Correctional Facility; R. F. SCHRAMM,
Correctional Officer and Certified Drug Tester,
Auburn Correctional Facility, formerly known as
R. F. Shramm; and FAGAN, Deputy
Superintendent of Security, Auburn
Correctional Facility, in his official capacity,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

JERMAINE FANN
Plaintiff pro se
430 Main Street - Apt. #306
Dunkirk, NY 14048
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224

1

WILLIAM A. SCOTT, ESQ.
NICOLE E. HAIMSON, ESQ.
Ass't Attorneys General

The Clerk is directed to amend the docket to reflect the correct spelling of Lt. Ouimette's name.

DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Jermaine Fann brought this civil rights action pursuant to 42 U.S.C.
§ 1983. On January 11, 2018, the Honorable Christian F. Hummel, United States Magistrate
Judge, advised by Report-Recommendation that defendants' motion for summary judgment
be granted in part and denied in part, and plaintif f's motion for summary judgment be denied
in its entirety. Plaintiff and defendants filed timely objections to the Report-Recommendation,
and defendants submitted an additional though untimely response to plaintiff's objections.
Based upon a careful review of the Report-Recommendation and the portions to
which the parties objected, the Report-Recommendation is accepted in whole. See 28
U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. Plaintiff's motion for summary judgment is DENIED in its entirety;
2. Defendants' motion for summary judgment is GRANTED in part and DENIED in
part;
3. Plaintiff's supervisory liability claims against defendants Fagan and Graham are
DISMISSED with prejudice;
4. Plaintiff's Fourteenth Amendment due process claim against defendant Ouimette
is DISMISSED with prejudice;
5. Plaintiff's Fourth Amendment unreasonable search claims against defendants
Cornell and Steinberg are DISMISSED with prejudice;

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6. Defendants' motion for summary judgment is DENIED as to plaintiff's First
Amendment retaliation claim against defendant Thomas; and
7. Defendants' motion for summary judgment is DENIED without prejudice as to
plaintiff's First and Fourth Amendment claims against defendants Cornell, Lovejoy, Schramm,
and Ederer for the incidents occurring on July 9, 2015, to defendants renewing this argument
and requesting a hearing to assess whether plaintiff exhausted his administrative remedies.
IT IS SO ORDERED.

Dated: March 19, 2018
Utica, New York.

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