Adams v. O'Hara et al

Filing 12

DECISION AND ORDER: ORDERED, that in accordance with plaintiff's Peralta Waiver (Dkt. No. 10), all claims set forth in the complaint relating to disciplinary sanctions imposed on plaintiff at the February 2015 disciplinary hearing which affect the duration of his confinement are DISMISSED. ORDERED that the Clerk of the Court shall issue summonses and forward them, along with copies of the complaint, to the United States Marshal for service of process on defendants. The Clerk shall forwar d a copy of the summons and complaint by mail to the Office of the New York State Attorney General, together with copies of this Decision and Order and the June Order. Signed by Chief Judge Glenn T. Suddaby on 7/15/16. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ROBERT ADAMS, III,
Plaintiff,

9:16-CV-0527
(GTS/ATB)

v.
DAVID O'HARA; et al.,
Defendants.

APPEARANCES:
ROBERT ADAMS, III
07-B-1611
Plaintiff, pro se
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871
GLENN T. SUDDABY
Chief United States District Judge
DECISION and ORDER
Plaintiff pro se Robert Adams, III commenced this action pursuant to 42 U.S.C. § 1983
seeking to asserts claims arising out of his confinement at Auburn Correctional Facility.

See

Dkt. No. 1 ("Compl."). Plaintiff, who is presently confined at Southport Correctional Facility,
did not pay the filing fee for this action and sought leave to proceed in forma pauperis.
Upon review of the complaint, the Court found that plaintiff's due process claims
against defendants Lamanna and Venetozzi arising out of a February 2015 Tier III
disciplinary hearing "implicate the validity of his disciplinary conviction and sentence," and
that plaintiff was subjected to "mixed sanctions" affecting both the duration and the conditions

of his confinement. Dkt. No. 8 ("June Order") at 11.1 Because plaintiff had not demonstrated
that these determinations have been invalidated, the Court found that the "favorable
termination" rule of Heck v. Humphrey, 512 U.S. 477 (1994) barred prosecution of the due
process unless plaintiff "'abandon[s], not just now, but also in any future proceeding, any
claims he may have with respect to the duration of his confinement that arise out of the
proceeding he is attacking in [this] § 1983 suit.'" Id. (quoting Peralta v. Vasquez, 467 F.3d 98,
104 (2d Cir. 2006)).
Plaintiff has submitted a written statement (the "Peralta Waiver") in which he "waives
for all times, all claims in the action, relating to disciplinary sanctions affecting the duration of
my confinement (i.e., the recommended loss of good time)." Dkt. No. 10 at 1. Plaintiff further
states that he "desires to proceed" with the due process claims challenging the sanctions
affecting the conditions of his confinement. Id.
Based upon the foregoing and in accordance with plaintiff's Peralta Waiver, all claims
set forth in the complaint relating to disciplinary sanctions imposed on plaintiff which affect
the duration of his confinement are dismissed.
WHEREFORE, it is hereby
ORDERED that in accordance with plaintiff's Peralta Waiver (Dkt. No. 10), all claims
set forth in the complaint relating to disciplinary sanctions imposed on plaintiff at the February
2015 disciplinary hearing which affect the duration of his confinement are DISMISSED; and it
is further

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The Court concluded that plaintiff's Eighth Amendment excessive force and failure to intervene claims
against C.O. O'Hara, C.O. Kirkwood, C.O. Curtis, C.O. Seery, Sgt. Dilallo, and Sgt. Walshvelo, and his Eighth
Amendment medical indifference claim against Nurse Smith survived sua sponte review pursuant to 28 U.S.C. §
1915(e) and 28 U.S.C. § 1915A and require a response. June Order at 13.

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ORDERED that the Clerk of the Court shall issue summonses and forward them,
along with copies of the complaint, to the United States Marshal for service of process on
defendants. The Clerk shall forward a copy of the summons and complaint by mail to the
Office of the New York State Attorney General, together with copies of this Decision and
Order and the June Order; and it is further
ORDERED that defendants, or their counsel, shall file a response to plaintiff's
complaint as provided for in the Federal Rules of Civil Procedure after service of process on
the defendants; and it is further
ORDERED that all pleadings, motions and other documents relating to this action must
bear the case number assigned to this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Plaintiff must comply with requests by the Clerk's Office
for any documents that are necessary to maintain this action. All parties must comply with
Local Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also
required to promptly notify the Clerk's Office and all parties or their counsel of any
change in his address; plaintiff's failure to do so will result in the dismissal of this
action, and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: July 15, 2016
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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