West v. Syracuse Police Department et al

Filing 41

DECISION AND ORDER accepting and adopting # 39 Magistrate Judge Stewart's Report and Recommendation in its entirety. Defendant's # 19 motion for judgment on the pleadings is denied. Plaintiff's Fourth Amendment sexual assault cla im is dismissed. Plaintiff's Fourth Amendment excessive force claim and his Fourth Amendment failure-to-protect claim survive. This case is referred back to Magistrate Judge Stewart for the re-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
__________________________________________
JESSE D. WEST,
Plaintiff,
9:17-CV-0621
(GTS/DJS)

v.
JOHN HARKNESS, #0304, Police Officer; and
JOHN HARRIMAN, #0463, Police Officer,
Defendants.
__________________________________________
APPEARANCES:

OF COUNSEL:

JESSE D. WEST, 17-B-3123
Plaintiff, Pro Se
Altona Correctional Facility
555 Devils Den Road
Altona, New York 12910
HON. KRISTEN E. SMITH
Corporation Counsel for the City of Syracuse
Counsel for Defendants
233 East Washington Street
300 City Hall
Syracuse, New York 13202

TODD M. LONG, ESQ.
Assistant Corporation Counsel

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Jesse D.
West (“Plaintiff”) against the two above-captioned police officers employed in the City of
Syracuse (“Defendants”), are the following: (1) Defendants’ motion for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c); (2) United States Magistrate Judge Daniel J.
Stewart’s Report-Recommendation recommending that Defendants’ motion be denied, and (3)
Plaintiff’s affidavit regarding the Report-Recommendation. (Dkt. Nos. 19, 39, 40.)

After carefully reviewing the relevant papers herein, including Magistrate Judge
Stewart’s thorough Report-Recommendation, the Court can find no error in the ReportRecommendation, clear or otherwise: Magistrate Judge Stewart employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 39.) As a
result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set
forth therein. To those reasons, the Court adds the following analysis.
In his Amended Complaint, Plaintiff asserts three claims: (1) a claim of excessive force
under the Fourth Amendment; (2) a claim of failure to protect under the Fourth Amendment; and
(3) a claim of sexual assault under the Fourth Amendment. (Dkt. No. 8.) In his ReportRecommendation, Magistrate Judge Stewart recommends that Defendants’ motion be denied
with regard to all three claims, which should be permitted to proceed. (Dkt. No. 39.) Although
Plaintiff’s Objection to the Report-Recommendation was due on June 15, 2018, he did not file an
Objection within that time period. Rather, in a submission entitled “Affidavit of Service” dated
July 9, 2018 (and thus deemed “filed” on that date pursuant to the Prison Mailbox Rule),
Plaintiff stated as follows:
[Although] U.S. Magistrate Judge Daniel J. Stewart . . . recommends that
Defendants[’] motion regarding Plaintiff[’] claim for sexual assault be
denied, and that Plaintiff’s Fourth Amendment claim of sexual assault be
permitted to proceed . . . [,] I’m not seeking to file charges against . . .
[Defendants] for sexual assault and related charges . . . .
(Dkt. No. 40.)
Under the circumstances, the Court liberally construes this submission as either (1) a
belated Objection to that portion of the Report-Recommendation recommending that Plaintiff’s
Fourth Amendment sexual assault claim be permitted to proceed (apparently because he
mistakenly intended that claim to arise under New York common law, and now understands that
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the claim cannot do so, and that any Fourth Amendment sexual assault claim would be redundant
of his Fourth Amendment excessive force claim), or (2) a request to voluntarily discontinue his
Fourth Amendment sexual assault claim pursuant to Fed. R. Civ. P. 41(a)(2) (for the same
reason). Regardless of the construction, the result would be the same: the Court finds that cause
has been shown for the dismissal of Plaintiff’s Fourth Amendment sexual assault claim.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 39) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for judgment on the pleadings (Dkt. No. 19) is
DENIED; and it is further
ORDERED that Plaintiff’s Fourth Amendment sexual assault claim is DISMISSED; and
it is further
ORDERED that SURVIVING this Decision and Order are Plaintiff’s Fourth
Amendment excessive force claim and his Fourth Amendent failure-to-protect claim; and it is
further
ORDERED that this case is referred back to Magistrate Judge Stewart for the resetting
of pretrial scheduling deadlines.
Dated: August 7, 2018
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

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