Koehl v. Bernstein et al

Filing 67

ORDER: that Magistrate Judge Gorenstein's Report & Recommendation is adopted and Defendants' motion to dismiss the complaint pursuant to F.R.C.P. 12(b)(6) [docket no. 25] is granted in part and denied in part. The following claims remain: (1) Fourteenth Amendment Due Process claims against Harvey, Sawyer, and Russo based on disciplinary proceedings; (2) First Amendment retaliation claims (a) against Cunningham with regard to Koehl's facility transfer, (b) against Cunningham with regard to Koehl's executive clemency application, and (c) against Russo and Harvey with regard to Koehl's tier ill misbehavior report and against Hilliar with regard to the tier II misbehavior report; (3) Eighth Amendment claims (a) against Ercole for his involvement in Koehl's 60 day assignment to a cell with "chain smokers," and (b) against Fischer, Dr. Wright, and Dr. Bernstein for their failure to treat Koehl's cervical spine and back injuries. (Signed by Judge Sidney H. Stein on 9/21/2011) (ft)

USDCSDNY

DOCUMENT
ELECTRONICALLY fILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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10 Civ. 3808 (SHS)

EDWARD KOEHL,
Plaintiff,

ORDER

-againstDR. FREDERICK BERNSTEIN, ET AL.,
Defendants.

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SIDNEY H. STEIN, U.S. District Judge.
On June 6, 2011, Magistrate Judge Gabriel W. Gorenstein issued a Report and
Recommendation recommending that defendants' motion to dismiss the complaint pursuant to
Fed. R. Civ. P. 12(b)(6) be granted in part and denied in part. The Court has received plaintiffs
objections to the Report and Recommendation dated August 19,2011, and September 13,2011.
After a de novo review of the Report and Recommendation dated June 6, 2011, and plaintiffs
objections dated August 19,2011, and September 13,2011,
IT IS HEREBY ORDERED that:
1.

Magistrate Judge Gorenstein's Report & Recommendation is adopted; and

2.

Defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P.

12(b)(6) [docket no. 25] is granted in part and denied in part as follows: (1) all claims against the
State of New York for damages and against the defendants brought in their official capacities are
DISMISSED; (2) the Fourteenth Amendment due process claims against Brennan, Fischer, and
Hilliar based on disciplinary proceedings are DISMISSED; (3) the First Amendment retaliation
claims (a) against Evans, Edwards, Herman, and Tracy with regard to Koehl's e){ecutive

clemency application, and (b) against Fischer and Brennan with regard to the tier ill misbehavior
report and against Sawyer with regard to the tier II misbehavior report are DISMISSED and (4)
the Eighth Amendment claims (a) against Cunningham for his involvement in Koehl's 60 day
assignment to a cell with "chain smokers," (b) against Fischer, Ercole, Lee, Cunningham, and
Dr. Bernstein for their failure to enforce the New York ban on smoking in prisons, (c) against
Ercole, Cunningham, and Lee with regard to Koehl's cell assignments and transfers generally,
(d) against Fischer, Ercole, and Lee for their failure to provide Koehl with weather appropriate
clothing, (e) against Fischer and Wright for their failure to provide Koehl with dental care, (f)
against Dr. Weinstein for his failure to treat Koehl's cervical spine and back injuries, and (g)
against Dr. Bernstein, Dr. Fein, Dr. Wright, Ercole, Lee, Cunningham, and Fischer for their
failure to treat Koehl's lung disease are DISMISSED.
The following claims remain: (1) Fourteenth Amendment Due Process claims
against Harvey, Sawyer, and Russo based on disciplinary proceedings; (2) First Amendment
retaliation claims (a) against Cunningham with regard to Koehl's facility transfer, (b) against
Cunningham with regard to Koehl's executive clemency application, and (c) against Russo and
Harvey with regard to Koehl's tier ill misbehavior report and against Hilliar with regard to the
tier II misbehavior report; (3) Eighth Amendment claims (a) against Ercole for his involvement
in Koehl's 60 day assignment to a cell with "chain smokers," and (b) against Fischer, Dr.
Wright, and Dr. Bernstein for their failure to treat Koehl's cervical spine and back injuries.
Dated: New York, New York
September 21,2011

SO ORDERED:

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