Bernier v. Carter et al
Filing
44
DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 43 ) is REJECTED in part to the extent that it recommended the Court dismiss Plaintiff's claim against King. The Report-Recommendation is otherwise APPROVED and ADOPTED. O RDERED, that Moving Defendants' 38 Motion is GRANTED in part. Plaintiff's claims against Langford, Burdo, John Doe #1, and John Doe #2 are DISMISSED without prejudice for failing to state a claim upon which relief may be granted. ORDERED , that Moving Defendants' Motion is otherwise DENIED.ORDERED, that Langford, Burdo, John Doe #1, and John Doe #2 are TERMINATED as defendants in this action. ORDERED, that Plaintiff must serve Dickson within ninety days of the date of this Decision and Order, or later with good cause shown. Because Plaintiff is proceeding IFP, the Clerk shall once again issue a summons for Dickson and forward it, along with a copy of the Complaint, to the U.S. Marshal for service on Dickson. Signed by Senior Judge Lawrence E. Kahn on 5/1/2020. {order served via regular mail on plaintiff}(nas )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MANFRED BERNIER,
Plaintiff,
-against-
9:17-CV-1376 (LEK/ATB)
THOMAS CARTER, et al.,
Defendants.
DECISION AND ORDER
I.
INTRODUCTION
Pro se plaintiff Manfred Bernier has brought this Bivens1 action involving inadequate
medical care that occurred while Plaintiff was incarcerated at Ray Brook, New York Federal
Correctional Institution (“FCI Ray Brook”) in the custody of the Federal Bureau of Prisons. Dkt.
No. 1 (“Complaint”). Plaintiff has sued several prison officials at FCI Ray Brook: Lieutenant
Thomas Carter, Correction Officer (“C.O.”) Lucas King, C.O. Dickson, Warden Stephen
Langford, Health Services Administrator Kim Burdo,2 Deputy of Administration John Doe #1,
and Captain of Security John Doe #2. Id.
Plaintiff asserts the following claims: (1) Eighth Amendment deliberate-medicalindifference claims against Carter, Langford, Burdo, John Doe #1, and John Doe #2 for delaying
access to adequate medical care; (2) Eighth Amendment claims against Dickson and King for
failing to prevent Carter’s unconstitutional conduct; and (3) Eighth Amendment deliberate-
1
2
Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).
Although the Complaint lists this defendant’s last name as “Burdt,” the correct name
is“Burdo.” Compare Compl. with Docket.
medical-indifference claims against Langford, Burdo, John Doe #1, and John Doe #2 for
“fail[ing] to correct, allow[ing] to continue, even endors[ing]” policies of “no emergency buttons
in the cells,” “no medical care available overnight,” “staff rounds only every two hours
overnight,” and “sole discretion left to unprofessional security staff whether to call for an
ambulance.” Id. ¶¶ 26–34. Plaintiff seeks declaratory, injunctive, and monetary relief. Id.
¶¶ 36–39.
Carter, King, Langford, and Burdo (collectively, “Moving Defendants”) 3 have moved to
dismiss Plaintiff’s claims pursuant to Federal Rule of Civil Procedural 12(b)(6) for failure to
state a claim upon which relief may be granted, or, in the alternative, pursuant to Rule 56(a) for
summary judgment. Dkt. Nos. 38 (“Motion”); 38-2 (“King Affidavit”); 41-1 (“Moving
Defendants’ Memorandum”); 41-2 (“Moving Defendants’ Statement of Material Facts” or
“Moving Defendants’ SMF”).4 Plaintiff opposes the Motion. Dkt. No. 42 (“Opposition”).
On March 24, 2020, the Honorable Andrew T. Baxter, United States Magistrate Judge,
issued a Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3
concerning Moving Defendants’ Motion. Dkt. No. 43 (“Report-Recommendation” and “Order”).
Judge Baxter recommended: (1) granting Moving Defendants’ motion to dismiss or for summary
judgment as to the claims against King, Langford, and Burdo; (2) granting Moving Defendants’
3
As discussed further below, Plaintiff has yet to serve the Complaint upon Dickson and
the John Doe defendants.
4
Technically, Dkt. Nos. 41-1 and 41-2 are an amended memorandum and statement of
material facts, respectively. Moving Defendants submitted these documents to correct a factual
error in their original submissions regarding the location of Plaintiff’s cell the night he
purportedly suffered inadequate medical care. Compare Dkt. No. 38-1 and Dkt No. 38-3 with
Dkt. No. 41-1 and Dkt. No. 41-2.
2
motion to dismiss or for summary judgment as to any claims relating to duress alarms or to
staffing; and (3) denying Moving Defendants’ motion to dismiss or for summary judgment as to
Plaintiff’s claim against Carter. R. & R. at 27–28.
Additionally, Judge Baxter observed that Plaintiff has yet to serve the Complaint upon
Dickson and the John Doe defendants. Order at 26. Although he declined to recommend
dismissal of Dickson and the John Doe Defendants, Judge Baxter ordered Plaintiff to “notify the
[C]ourt in his objections (if any) to th[e] Report-Recommendation why [] Dickson and [the] John
Doe defendants should not be dismissed from this action” for insufficient service. Order at 28.
Plaintiff did not file objections responding to the Magistrate Judge’s ReportRecommendation or Order.
For the reasons that follow, the Court adopts the Report-Recommendation in part, rejects
it in part, declines to dismiss Dickson, and dismisses the John Doe defendants without prejudice.
II.
BACKGROUND
The Court draws all facts, which are assumed to be true, from the Complaint. Bryant v.
N.Y. State Educ. Dep’t, 692 F.3d 202, 210 (2d Cir. 2012).
Around 1:00 AM on November 19, 2015, Plaintiff “jolted awake” from “excruciatingly
intense, severe stabbing pains in the lower right side of [his] abdomen.” Compl. ¶ 11. Unable to
call for help because he was “delirious with pain” and because he did not have an “emergency
medical alert button” in his cell, Plaintiff had his cell mate yell for assistance. Id. ¶¶ 12–13.
A half hour later, Dickson came to Plaintiff’s cell, but told Plaintiff he could not unlock a
cell door or call for medical assistance during an overnight shift “because only a lieutenant can
make that call.” Id. ¶ 14. Dickson then contacted Carter, but it took another thirty minutes for
3
him to arrive even though Plaintiff was in “sheer agony.” Id. ¶ 15. Upon arriving at Plaintiff’s
cell with Dickson and King, Carter shined a flashlight through the cell door into Plaintiff’s eyes.
Id. ¶ 16. He then “bark[ed]” at Plaintiff that he would charge Plaintiff with a disciplinary
violation if he were “faking” his illness. Id. Carter also told Plaintiff to stop his “fucking
moaning” and “damn groaning” and to “man up.” Id. Dickson and King just “smirk[ed]” and
appeared “amused” while Carter insulted Plaintiff. Id. ¶ 17. Carter then told Plaintiff that he
should “sign up for sick call in the morning.” Id. ¶ 19. Before leaving, Carter stated, “You better
not call for help again because if you make me return, there’s going to be consequences.” Id.
While waiting another five hours to attend sick call, Plaintiff thought he might die from
“relentless pain.” Id. ¶ 21. Dickson and King made “a couple more rounds over the [] five hour
period[,] but d[id] nothing other than gawk at Plaintiff.” Id. The next morning, Plaintiff notified
an unidentified correction officer, who is not a party to this action, that he required immediate
medical assistance. Id. ¶ 22. The officer arranged for an unidentified nurse, who is also not a
party to this action, to examine Plaintiff. Id. The nurse sent Plaintiff to the hospital where he had
emergency surgery for “strangulation of [his] intestines, an internal hernia, and a tumor.” Id. ¶ 23.
III.
STANDARDS OF REVIEW
A. Report-Recommendation
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If objections are timely
filed, a court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” § 636(b). However, if no
4
objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration
of an argument made to the magistrate judge, a district court need review that aspect of a
report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL
1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2
(N.D.N.Y. 2008), abrogated on other grounds by Widomski v. State Univ. of N.Y. at Orange,
748 F.3d 471 (2d Cir. 2014)).
B. Rule 12(b)(6) Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter . . . ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
plausibility standard “asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (citing Twombly, 550 U.S. at 556). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Put another way, a claim is plausible if it is
supported by “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence
of [the alleged misconduct].” Twombly, 550 U.S. at 556. In assessing whether this standard has
been met, courts “must accept all allegations in the complaint as true and draw all inferences in
the light most favorable to the non-moving party[] . . . .” In re NYSE Specialists Sec. Litig., 503
F.3d 89, 95 (2d Cir. 2007) (internal citation omitted).
5
C. Summary Judgment
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all the submissions taken together “show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The moving party bears the initial burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the outcome of
the suit under the governing law” and is genuinely in dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see
also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (noting summary
judgment is appropriate where the non-moving party fails to “come forth with evidence sufficient
to permit a reasonable juror to return a verdict in his or her favor on an essential element of a
claim” (internal quotation marks omitted)).
IV.
DISCUSSION
A. Report-Recommendation
No objections were filed. Docket. Consequently, the Court has reviewed the
Report-Recommendation for clear error. The Court finds none except as to its recommendation
that the Court grant Moving Defendants’ motion to dismiss or for summary judgment regarding
Plaintiff’s claim against King.
Plaintiff avers that King failed to “intervene” when Carter refused to call for medical
assistance. Compl. ¶ 29. Relying on the King Affidavit and accompanying prison records, which
suggest that King was not present at FCI Ray Brook in the early hours of November 19, 2015,
6
Judge Baxter concluded that there is no genuine issue of material fact as to whether King was
“personally involved in any alleged denial of medical care.” R. & R. at 14–15 (citing King Aff.
¶ 4; id. at 2–3 (“King Daily Assignments Log”)). The Court finds that Judge Baxter committed
clear error in concluding summary judgment is warranted as to Plaintiff’s claims against King.
King attests that he “do[es] not know . . . [Plaintiff]” and that he did not arrive at FCI Ray
Brook on November 19 until the start of his shift at 6:15 AM. King Aff. ¶ 4; King Daily
Assignments Log. Additionally, he attests that, on November 19, Plaintiff was housed in a
different unit of the prison than the unit to which he was assigned. Id. ¶ 5; id. at 4–5 (“Plaintiff’s
Housing Record”). In response to the King Affidavit, Plaintiff filed an affidavit pursuant to Rule
56(d) in which he requests discovery to show that King accompanied Carter to Plaintiff’s cell
during Plaintiff’s medical emergency. See Opp’n at 10–11 (“Plaintiff’s Affidavit”) ¶ 1; see also
id. at 8–9 (“Plaintiff’s Response to Moving Defendants’ SMF”) ¶ 32 (“Further discovery is
required, including camera footage and overtime records. King was on-shift as overtime.”).
Rule 56(d) “provides, as interpreted by court opinions, that when a party facing an
adversary’s motion for summary judgment reasonably advises the court [via an affidavit or
declaration] that it needs discovery to be able to present facts needed to defend the motion, the
court should defer decision of the motion until the party has had the opportunity to take discovery
and rebut the motion.” Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d
374, 386 (2d Cir. 2001).5 Despite submitting a Rule 56(d) affidavit, Judge Baxter concluded that
summary judgment is warranted as to King for two reasons. First, the King Affidavit
5
As indicated in Commercial Cleaning Servs., Rule 56(d) was previously labeled as Rule
56(f). See Gomez v. City of White Plains, No. 13-CV-7750, 2014 WL 2210646, at *3 (S.D.N.Y.
May 23, 2014).
7
“specifically states that [King] did not enter the institution prior to the start of [King’s] regularly
scheduled shift.” R. & R. at 15 (internal quotation marks omitted). Second, Plaintiff “never
mentioned King in his grievance as having been involved in defendant Carter’s alleged conduct.”
Id.6
To put Judge Baxter’s first explanation slightly differently, King is entitled to summary
judgment because there is unrebutted evidence that King could not have been present for
Plaintiff’s medical emergency. This reasoning, however, is problematic in several ways. First,
Plaintiff has in fact submitted evidence to rebut the King Affidavit: his Complaint. While a
Complaint normally may not be considered evidence on summary judgment, a verified
complaint, such as Plaintiff’s, “is to be treated as an affidavit for summary judgment purposes,
and therefore will be considered in determining whether material issues of fact exist . . . .” See
Cantey v. Martuscello, No. 17-CV-284, 2020 WL 1030646, at *1 (N.D.N.Y. Mar. 3, 2020)
(Kahn, J.) (quoting Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)); Compl. The Complaint
suggests King was present during Plaintiff’s medical emergency, while the King Affidavit
suggests the opposite. Compare Compl. with King Aff. However, “[r]esolving the discrepancy
between the parties’ competing evidence would require the court to undertake a credibility
determination that is not appropriate on summary judgment.” See Telesford v. Tamer, No. 14CV-1209, 2016 WL 11480163, at *4 (N.D.N.Y. Aug. 31, 2016) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)), report and recommendation adopted by No.
6
Plaintiff filed a grievance in which he alleged that FCI Ray Brook “staff” alerted Carter
to Plaintiff’s November 19, 2015 medical emergency. Dkt. No. 7 (“Plaintiff’s Grievance
Records”) at 5 (“February 2016 Grievance”). Plaintiff subsequently identified King as one of the
“staff” members in his Complaint. See Compl. ¶¶ 16–17, 21.
8
14-CV-1209, 2016 WL 5338083 (N.D.N.Y. Sept. 23, 2016); Kaytor v. Electric Boat Corp., 609
F.3d 537, 545 (2d Cir. 2010) (“In reviewing the evidence and the inferences that may reasonably
be drawn, the court may not make credibility determinations or weigh the evidence.” (emphasis
and internal quotation marks omitted)).
Furthermore, even if Plaintiff did not have evidence at this stage to rebut the King
Affidavit, the parties have not taken discovery in this suit. See Opp’n at 3. For instance, Plaintiff
has not yet been given an opportunity to depose King to “test the veracity of the ‘undisputed’
facts set forth in [the King Affidavit].” See V.W. by & through Williams v. Conway, 236 F.
Supp. 3d 554, 580 (N.D.N.Y. 2017). And perhaps, as Plaintiff suspects, there may be footage or
other records indicating King was present for Plaintiff’s medical emergency. “Only in the rarest
of cases may summary judgment be granted against a plaintiff who has not been afforded the
opportunity to conduct discovery.” Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97
(2d Cir. 2000). This is not one of those rare cases. Cf. Levy v. Town of N. Hempstead, No.
12-CV-1777, 2013 WL 5276559, at *1 n.1 (E.D.N.Y. Sept. 18, 2013) (noting that “this is one of
those rare cases” under Hellstrom because the defendants had shown that they “have no
connection to [the] case”). Hence, the Court must deny Moving Defendants’ motion for summary
judgment on Plaintiff’s claims against King. See Kelly v. Tan, No. 11-CV-6614, 2013 WL
4811913, at *4 (W.D.N.Y. Sept. 10, 2013) (“[T]he Court is mindful that no discovery has yet
taken place in this action . . . the Court could deny the motion on this basis alone . . . .”); Trebor
Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (Noting that under
Rule 56(d) “summary judgment may be inappropriate where the party opposing it shows . . . that
[it] cannot at the time present facts essential to justify [its] opposition. The nonmoving party
9
should not be ‘railroaded’ into [its] offer of proof in opposition to summary judgment. The
nonmoving party must have had the opportunity to discover information that is essential to [its]
opposition to the motion for summary judgment.” (internal quotations and citations omitted)).7
Judge Baxter’s second explanation for granting summary judgment on Plaintiff’s claim
against King—that Plaintiff failed to identify King in his February 2016 Grievance—is also
problematic for two reasons. First, the relevance of that grievance here is to whether Plaintiff has
exhausted his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a), not to whether Plaintiff should be entitled to discovery regarding the individuals and
conduct described in the grievance. Moreover, the Magistrate Judge, having acknowledged that
“Plaintiff is not required to name all responsible parties in a grievance in order to exhaust his
claims . . .,” concludes that Plaintiff exhausted his administrative remedies as to his claim against
King even though King is not specifically identified in the grievance. R. & R. at 9–10 (citing
Albritton v. Morris, No. 13-CV-3708, 2018 WL 1609526, at *10–11 (S.D.N.Y. Mar. 29, 2018);
Feb. 2016 Grievance). To find that Plaintiff has adequately exhausted his administrative
remedies regarding his claims against King (even though King is not mentioned in the February
2016 Grievance), only to then dismiss that claim on summary judgment for failing to identify
King in the grievance, results in a manifestly unfair outcome for Plaintiff.
7
Trebor Sportswear also refers to Rule 56(f), the predecessor to Rule 56(d).
10
The Court therefore rejects the Report-Recommendation as to its recommendation that
the Court grant summary judgment in favor of King.8 It, however, adopts the remaining portions
of the Report-Recommendation.
B. Order
Judge Baxter ordered Plaintiff to explain in his objections why Dickson and the John Doe
defendants should not be dismissed from this case even though Plaintiff has yet to serve them.
Order at 28. Although Plaintiff failed to respond to the Report-Recommendation and Order, the
Court declines at this time to dismiss Dickson. However, the Court does dismiss the John Doe
defendants without prejudice.
1. Dickson
Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service
for an appropriate period.
Rule 4(m).
8
The Court notes that the Report-Recommendation technically recommended granting
Moving Defendants’ Motion on either 12(b)(6) or summary judgment grounds. R. & R. at 27.
Moving Defendants have solely argued that Plaintiff’s claim against King must be dismissed
because it is “objectively impossible” for King to have been personally involved in any
deprivation of Plaintiff’s constitutional rights. Moving Defs.’ Mem. at 9. Since, as discussed
above, the Court has rejected this argument, the Court will not dismiss Plaintiff’s claim against
King for failing to state a claim upon which relief may be granted.
11
Plaintiff filed the Complaint on December 21, 2017, which is over ninety days ago.
Because, as discussed below, the Court finds that Plaintiff has shown good cause for his failure
to serve Dickson, the Court will extend the time period in which Plaintiff must serve him.
“Good cause is generally found only in exceptional circumstances where the plaintiff’s
failure to serve process in a timely manner was the result of circumstances beyond [his] control.”
Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 597–98 (E.D.N.Y. 2013) (quoting
Beauvoir v. U.S. Secret Serv., 234 F.R.D. 55, 56 (E.D.N.Y. 2006)). “The Second Circuit has held
that as long as the prisoner [proceeding in forma pauperis (“IFP”)] provides the information
necessary to identify the defendant, the Marshal’s failure to effect service automatically
constitutes good cause for an extension of time within the meaning of Fed. R. Civ. P. 4(m).”
Chaney v. Vena, No. 15-CV-653, 2016 WL 9687496, at *4 (N.D.N.Y. Dec. 27, 2016) (citing
Murray v. Pataki, 378 F. App’x 50 (2d Cir. 2010)), report and recommendation adopted by No.
15-CV-653, 2017 WL 4180017 (N.D.N.Y. Sept. 20, 2017).
Here, the Magistrate Judge ordered the United States Marshal to serve the Complaint
upon Defendants because Plaintiff is proceeding IFP. See Dkt. No. 5 (“March 2018 Decision and
Order”) at 6. The Marshal, however, has been unable to serve Dickson to date because Dickson
no longer works for the BOP and the U.S. Attorney does not have his current address on file. See
Dkt. Nos. 15 (“Service Records”) at 3; 27 (“July 2019 Status Report”) at 1–2.
Although Judge Baxter states that the “responsibility” for locating Dickson lies solely
with Plaintiff, R. &. R. at 26, “it is ‘unreasonable to expect incarcerated and unrepresented
prisoner-litigants to provide the current addresses of prison-guard defendants who no longer
12
work at the prison.’” Murray, 378 F. App’x at 52 (quoting Richardson v. Johnson, 598 F.3d 734,
739–40 (11th Cir. 2010)).
Consequently, because Plaintiff has demonstrated good cause for failing to serve the
Complaint upon Dickson, the Court will provide Plaintiff with another ninety days to serve him.
2. John Doe Defendants
In the Report-Recommendation, the Magistrate Judge recommended dismissing
Plaintiff’s claims against the Johns Doe defendants for the same reasons that he recommended
dismissal of those claims against Langford and Burdo. R. & R. at 27.
First, Judge Baxter found Plaintiff failed to exhaust his administrative remedies against
Langford and Burdo regarding their failure to install emergency alert buttons and to properly staff
FCI Ray Brook. While Plaintiff did file a grievance in which he alleged that FCI Ray Brook
“staff” alerted Carter to Plaintiff’s November 19, 2015 medical emergency, Feb. 2016 Grievance,
he did not file any grievances notifying prison officials of the lack of emergency alert buttons and
staffing. Hence, the Court finds no clear error in the Magistrate Judge’s recommendation to
dismiss Plaintiff’s claims against Langford and Burdo regarding the lack of emergency alert
buttons and staffing for Plaintiff’s failure to exhaust his administrative remedies.
Judge Baxter also recommended dismissal of any claims Plaintiff may have brought
against Langford and Burdo for delaying access to medical care because “Plaintiff does not claim
that either of these defendants were present during, or otherwise personally involved in,
Plaintiff’s November 19 medical emergency.” R. &. R. at 14. Since Plaintiff does not include any
allegations to suggest Langford and Burdo were personally involved in any deprivation of
13
Plaintiff’s right to adequate medical care, the Court also finds no clear error in this
recommendation.
Therefore, the Court dismisses Plaintiff’s claims against Langford and Burdo for failing
to state a claim upon which relief may be granted.
Plaintiff brings identical claims premised on identical allegations against the John Doe
defendants. Compl. ¶¶ 33–34. Hence, the Court concludes that Plaintiff’s claims against them
must be dismissed under Rule 12(b)(6) for the same reasons Judge Baxter recommended
dismissal of Plaintiff’s claims against Langford and Burdo.
V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 43) is REJECTED in part to
the extent that it recommended the Court dismiss Plaintiff’s claim against King. The ReportRecommendation is otherwise APPROVED and ADOPTED; and it is further
ORDERED, that Moving Defendants’ Motion is GRANTED in part. Plaintiff’s claims
against Langford, Burdo, John Doe #1, and John Doe #2 are DISMISSED without prejudice
for failing to state a claim upon which relief may be granted; and it is further
ORDERED, that Moving Defendants’ Motion is otherwise DENIED; and it is further
ORDERED, that Langford, Burdo, John Doe #1, and John Doe #2 are TERMINATED
as defendants in this action; and it is further
ORDERED, that Plaintiff must serve Dickson within ninety days of the date of this
Decision and Order, or later with good cause shown. Because Plaintiff is proceeding IFP, the
14
Clerk shall once again issue a summons for Dickson and forward it, along with a copy of the
Complaint, to the U.S. Marshal for service on Dickson; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
May 01, 2020
Albany, New York
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