Ayers v. Trombley et al

Filing 27

DECISION AND ORDER: The # 24 Report-Recommendation is accepted and adopted in all respects. It is ORDERED that Defendants' motion for summary judgment (docket # 19 ) is GRANTED in part and DENIED in part. The motion is GRANTED with respect to p laintiff's First Amendment retaliation claim against defendant Trombley based on exhaustion grounds and that claim is DISMISSED. The motion is DENIED without prejudice with respect to plaintiff's First Amendment Free Exercise claims against defendants Trombley and Bernier based on qualified immunity grounds and those claims shall proceed to trial. Any request for pro bono trial counsel shall be filed within thirty (30) days of the date of this Decision and Order. Trial is scheduled for February 10, 2020, in Utica, New York. Signed by Judge David N. Hurd on 8/19/2019. (Copy served via regular mail)(meb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------HOWARD AYERS,
Plaintiff,
-v-

9:17-CV-1229
(DNH/TWD)

ZACHARIE TROMBLEY, Food Service
Administrator, Barehill Correctional Facility,
formerly known as D. Trombley and HENRY
BERNIER, Civilian Cook, Barehill Correctional
Facility, formerly known as Beriner,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

HOWARD AYERS
Plaintiff pro se
502 W. 213 Street 3C
New York, NY 10034
HON. LETITIA JAMES
Attorney General for the State of New York
Attorney for Defendant
The Capitol
Albany, NY 12224

KONSTANDINOS D. LERIS, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Howard Ayers brought this civil rights action pursuant to 42 U.S.C.
§ 1983. On July 8, 2019, the Honorable Thérèse Wiley Dancks, United States Magistrate
Judge, advised by Report-Recommendation that defendants' motion for summary judgment

be granted in part and denied in part. Specif ically, Magistrate Judge Dancks recommended
that the motion be granted as to defendant Trombley on plaintiff's First Amendment
retaliation claim based on exhaustion grounds but that the motion be denied as to
defendants Trombley and Bernier on plaintiff's First Amendment Free Exercise claims based
on qualified immunity grounds. Defendants timely filed objections to the ReportRecommendation with respect to the qualified immunity issue.
Based upon a de novo review of the portions of the Report-Recommendation to
which defendants objected, the Report-Recommendation is accepted and adopted in all
respects. See 28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED in part and DENIED in
part;
2. The motion is GRANTED with respect to plaintiff's First Amendment retaliation
claim against defendant Trombley based on exhaustion grounds and that claim is
DISMISSED;
3. The motion is DENIED without prejudice with respect to plaintiff's First
Amendment Free Exercise claims against defendants Trombley and Bernier based on
qualified immunity grounds and those claims shall proceed to trial;
4. Any request for pro bono trial counsel shall be filed within thirty (30) days of the
date of this Decision and Order; and
5. Trial is scheduled for February 10, 2020, in Utica, New York.
IT IS SO ORDERED.
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Dated: August 19, 2019
Utica, New York.

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