Heyliger v. Cymbrak et al
Filing
84
DECISION AND ORDER: ORDERED that the 83 Report and Recommendation is accepted in whole. ORDERED that 72 Defendants' motion for partial summary judgment is GRANTED. ORDERED that Plaintiff's Eighth Amendment conditions of confine ment claim against defendant Lafountain regarding his food is DISMISSED. ORDERED that 78 Plaintiff's cross-motion for partial summary judgment is DENIED. ORDERED that pursuant to plaintiff's stipulations, the following claims are DISMIS SED with prejudice: (1) plaintiff's First Amendment retaliation claims against defendants Cymbrak, Guynup, Lafountain, Lagree, Mahoney, Mussen, Perry, and Wilcox insofar as those claims are based on the alleged October 28, 2015 assault; (2) all claims against defendants Annucci, Bellamy, Effman, Loren, Simpson, and Leahy Scott; and (3) plaintiff's excessive force claims against defendants Mahoney and Lafountain. ORDERED that the action is terminated as to defendants Annucci, Bellamy, Effman, Loren, Simpson, and Leahy Scott. The following claims remain for trial: (1) plaintiff's Eighth Amendment excessive force claims against defendants Cymbrak, Guynup, Lagree, Mussen, Wilcox, and Perry based on an alleged October 28, 20 15 use of force; (2) plaintiff's racial discrimination claim against defendant Lagree relating to the October 28, 2015 incident; and (3) plaintiff's First Amendment retaliation claim against defendant Lafountain alleging food tampering, des truction of property, and falsification of property transfer documents. Trial is tentatively scheduled for July 20, 2020 at 9:30 a.m. in Utica, New York. Pre-trial submissions are due on or before July 6, 2020. The parties are directed to adv ise the Court on or before April 1, 2020 whether or not a consent to a jury trial before Magistrate Judge Hummel pursuant to 28 U.S.C. § 636(c) will be executed based on his familiarity with the case. ORDERED that Plaintiff's prior motion for the appointment of counsel is considered renewed and the Clerk is directed to appoint plaintiff pro bono trial counsel. Signed by Judge David N. Hurd on 2/11/2020. {order served via regular mail on plaintiff}(nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DEREK A. HEYLIGER,
Plaintiff,
-v-
ANDREW CYMBRAK, in his individual capacity
as Correctional Officer, Clinton Correctional
Facility, formerly known as A. Cymbrak;
CHRISTOPHER LAGREE, in his individual
capacity as Correctional Officer, Clinton
Correctional Facility, formerly known as C.
Lagree; KYLE GUYNUP, in his individual
capacity as Correctional Officer, Clinton
Correctional Facility, formerly known as Kile
Guynup; A. MUSSEN, in his individual capacity
as Correctional Officer, Clinton Correctional
Facility; KEVIN WILCOX, in his individual
capacity as Correctional Officer, Clinton
Correctional Facility, formerly known as K.
Wilcox; LIAM MAHONEY, in his individual
capacity as Correctional Officer, Clinton
Correctional Facility, formerly known as L.
Maloney; WILLIAM PERRY, in his individual
capacity as Correctional Officer, Clinton
Correctional Facility; LAFOUNTAIN, in his
individual capacity as Correctional Officer,
Clinton Correctional Facility; ANTHONY
ANNUCCI, in his individual capacity as DOCCS
CORC Acting Commissioner of Corrections;
KAREN BELLAMY, in her individual capacity as
DOCCS CORC Director Inmate Grievance
Program; CATHERINE LEAHY SCOTT, in her
individual capacity as New York State Inspector
General; CHARLES SIMPSON, in his individual
capacity as DOCCS CORC Inmate Grievance
Coordinator; JASON EFFMAN, in his individual
capacity as DOCCS CORC Inmate Grievance
Program Coordinator; and REBECCA LOREN, in
her individual capacity as DOCCS CORC Inmate
Grievance Program Coordinator,
9:17-CV-912
(DNH/CFH)
Defendants.
-------------------------------APPEARANCES:
OF COUNSEL:
DEREK A. HEYLIGER
Plaintiff, Pro Se
12-B-0269
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
HON. LETITIA JAMES
Attorney General for the State of New York
Attorney for Defendant
The Capitol
Albany, NY 12224
WILLIAM A. SCOTT, ESQ.
Ass't Attorney General
DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Derek A. Heyliger brought this civil rights action pursuant to 42
U.S.C. § 1983. On December 16, 2019, the Honorable Christian F. Hummel, United States
Magistrate Judge, advised by Report-Recommendation that defendants' motion for partial
summary judgment be granted and that plaintiff's cross-motion for partial summary judgment
be denied. Magistrate Judge Hummel further recommended that, pursuant to plaintiff's
stipulation, several claims also be dismissed. No objections to the Report-Recommendation
have been filed.
Based upon a careful review of the entire file and the recommendations of the
Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C.
§ 636(b)(1).
-2-
Therefore, it is
ORDERED that
1. Defendants' motion for partial summary judgment is GRANTED;
2. Plaintiff's Eighth Amendment conditions of confinement claim against defendant
Lafountain regarding his food is DISMISSED;
3. Plaintiff's cross-motion for partial summary judgment is DENIED;
4. Pursuant to plaintiff's stipulations, the following claims are DISMISSED with
prejudice: (1) plaintiff's First Amendment retaliation claims against defendants Cymbrak,
Guynup, Lafountain, Lagree, Mahoney, Mussen, Perry, and Wilcox insofar as those claims
are based on the alleged October 28, 2015 assault; (2) all claims against defendants
Annucci, Bellamy, Effman, Loren, Simpson, and Leahy Scott; and (3) plaintiff's excessive
force claims against defendants Mahoney and Lafountain;
5. The action is terminated as to defendants Annucci, Bellamy, Effman, Loren,
Simpson, and Leahy Scott;
6. The following claims remain for trial: (1) plaintiff's Eighth Amendment excessive
force claims against defendants Cymbrak, Guynup, Lagree, Mussen, Wilcox, and Perry
based on an alleged October 28, 2015 use of force; (2) plaintiff's racial discrimination claim
against defendant Lagree relating to the October 28, 2015 incident; and (3) plaintif f's First
Amendment retaliation claim against defendant Lafountain alleging food tampering,
destruction of property, and falsification of property transfer documents; and
7. Trial is tentatively scheduled for July 20, 2020 at 9:30 a.m. in Utica, New York.
Pre-trial submissions are due on or before July 6, 2020;
-3-
8. The parties are directed to advise the Court on or before April 1, 2020 whether
or not a consent to a jury trial before Magistrate Judge Hummel pursuant to 28 U.S.C.
§ 636(c) will be executed based on his familiarity with the case; and
9. Plaintiff's prior motion for the appointment of counsel is considered renewed and
the Clerk is directed to appoint plaintiff pro bono trial counsel.
IT IS SO ORDERED.
Dated: February 11, 2020
Utica, New York.
-4-
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