Bernier v. Koenigsmann et al

Filing 230

ORDER ADOPTING REPORT & RECOMMENDATION: It is ORDERED that the Report & Recommendation (Dkt. No. 229 ) is accepted and adopted; and Plaintiff's complaint is DISMISSED with prejudice. The Clerk of the Court is directed to enter a judgment accordingly and close the file. Signed by Judge David N. Hurd on June 3, 2021. {Copy served via regular and certified mail on the plaintiff at both 116-30 131st Street, Queens, NY 11420 and 134-04 101st Ave., Richmondville, NY 11419}.(rep)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------JEAN BERNIER,
Plaintiff,
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9:17-CV-254

KOENIGSMANN et al.,
Defendants.
--------------------------------APPEARANCES:

OF COUNSEL:

JEAN BERNIER
Plaintiff, Pro Se
116-30 131st Street
Queens, NY 11420
WILSON, ELSER LAW FIRM
Attorneys for Defendants
Koenigsmann, Jones, Coryer,
Donnelly, O’Connor-Ryerson,
Gilfus, Hesse, Ashley, Gardner,
Dinello, and Mueller
200 Great Oaks Boulevard, Suite 228
Albany, NY 12203

NICOLE E. HAIMSON, ESQ.

MEGGESTO, CROSSETT
& VALERINO, LLP
Attorneys for Defendant Jeavons
313 East Willow Street, Suite 201
Syracuse, NY 13203

JAMES A. MEGGESTO, ESQ.

DAVID N. HURD
United States District Judge

ORDER ADOPTING REPORT & RECOMMENDATION
On March 6, 2015, pro se plaintiff Jean Bernier (“plaintiff”) filed this civil
rights action alleging that defendants violated his constitutional rights while
he was incarcerated at Auburn Correctional Facility and Southport
Correctional Facility. Dkt. No. 1.
After plaintiff amended his complaint, Dkt. No. 20, the Western District of
New York severed a number of his claims and transferred them to this
judicial district, Dkt. Nos. 50, 51. Thereafter, the Court accepted plaintiff’s
Second Amended Complaint for filing. Dkt. No. 57, 63, 64.
On July 28, 2017, defendants filed a partial motion to dismiss pursuant to
Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Dkt. No. 71. That motion
was granted as to certain defendants and claims on March 15, 2018. Dkt. No.
96, 104. At the request of the plaintiff, several other defendants were
dismissed from this action on July 30, 2019. Dkt. Nos. 143–45.
The parties completed discovery into plaintiff’s (1) Eighth Amendment
medical-indifference claims against defendants Ashley and
O’Connor-Ryerson; (2) Eighth Amendment medical-indifference claims
against defendants Koenigsmann, Mueller, Dinello, Jones, Coryer,
O’Connor-Ryerson, Ashley, Gardner, and Jeavons; (3) First Amendment
retaliation claims against defendants Ashley, O’Connor-Ryerson, and
Jeavons; and (4) First Amendment retaliation claims against defendants
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Hesse, Gilfus, and Donnelly. Defendants have moved for summary judgment
on these claims pursuant to Rule 56. Dkt. Nos. 210, 213.
On May 13, 2021, U.S. Magistrate Judge Andrew T. Baxter advised by
Report & Recommendation that defendants’ motions for summary judgment
be granted and that plaintiff’s Second Amended Complaint be
dismissed. Dkt. No. 229. Plaintiff has not filed an objection, and the time
period in which to do so has expired. See id.
Upon review for clear error, the Report & Recommendation is accepted
and adopted in all respects. See FED. R. CIV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 229) is accepted and adopted;
and
2. Plaintiff’s complaint is DISMISSED with prejudice.
The Clerk of the Court is directed to enter a judgment accordingly and
close the file.
IT IS SO ORDERED.

Dated: June 3, 2021
Utica, New York.

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