Kotler v. Bosco et al

Filing 34

DECISION AND ORDER accepting and adopting # 32 Magistrate Judge Peebles' Report and Recommendation in its entirety. Defendant's # 28 Motion to Dismiss is GRANTED in part with respect to the following claims: (1) Plaintiff's retalia tion claim against Defendants Sullivan and Saunders, who are DISMISSED from this action; and (2) Plaintiff's damage claims against the remaining Defendants in their official capacities, which damages claims are also DISMISSED. Defendants' # 28 motion to dismiss is DENIED with respect to Plaintiff's retaliation claims against Defendants Bosco, Nowicki, Gray, Cebula, Maxymillian, and Kunkle, which retaliation claims SURVIVE Defendants' motion to dismiss. This case is referred back to Magistrate Judge Peebles for the setting of pretrial scheduling deadlines. Signed by Chief Judge Glenn T. Suddaby on 8/7/18. (lmw) (Copy served upon pro se plaintiff via regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
KERRY KOTLER,
Plaintiff,
9:17-CV-0394
(GTS/DEP)

v.
MAUREEN BOSCO, Exec. Dir., CNYPC; JEFFERY
NOWICKI, Chief of Mental Health Treatment Servs.,
CNYPC; EMILY GRAY, Primary Therapist, CNYPC;
MARK CEBULA, Treatment Team Leader, CNYPC;
SAUNDERS, Treatment Team Leader, CNYPC; DR.
TERRI MAXYMILLIAN, Dir. of Treatment Servs.,
CNYPC; MARIE ANN SULLIVAN, Comm’r,
NYSOMH; and CHRISTOPHER KUNKLE, Dir.,
NYSOMH,
Defendants.
_____________________________________________
APPEARANCES:

OF COUNSEL:

KERRY KOTLER
Plaintiff, Pro Se
936 Walker Avenue
Bellport, New York 11713
HON. BARBARA UNDERWOOD
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

KATIE E. VALDER, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Kerry Kotler
(“Plaintiff”) against the above-captioned employees of the Central New York Psychiatric Center
and New York State Office of Mental Health (“Defendants”), are the following: (1) Defendants’

motion to dismiss Plaintiff’s Second Amended Complaint for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6); and (2) United States Magistrate Judge David E. Peebles’ ReportRecommendation recommending that Defendants’ motion be granted with respect to Plaintiff’s
retaliation claim against Defendants Sullivan and Saunders for lack of personal involvement, and
that Defendants’ motion be granted with respect to any damage claims against the remaining
Defendants in their official capacities, but that Defendants’ motion be denied with respect to
Plaintiff’s retaliation claims against the remaining Defendants. (Dkt. Nos. 28, 32.) The Parties
have not filed objections to the Report-Recommendation, and the deadline by 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; Defendants’ motion is
granted with respect to Plaintiff’s retaliation claim against Defendants Sullivan and Saunders;
Defendants’ motion is granted with respect to any damage claims against the remaining
Defendants in their official capacities; and Defendants’ motion is denied with respect to
Plaintiff’s retaliation claims against the remaining Defendants.

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).
2

ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 32) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 28) is GRANTED with
respect to the following claims: (1) Plaintiff’s retaliation claim against Defendants Sullivan and
Saunders, who are DISMISSED from this action; and (2) Plaintiff’s damage claims against the
remaining Defendants in their official capacities, which damages claims are also DISMISSED;
and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 28) is DENIED with respect
to Plaintiff’s retaliation claims against Defendants Bosco, Nowicki, Gray, Cebula, Maxymillian,
and Kunkle, which retaliation claims SURVIVE Defendants’ motion to dismiss; and it is further
ORDERED that this case is referred back to Magistrate Judge Peebles for the setting of
pretrial scheduling deadlines.
Dated: August 7, 2018
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

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