McMichael v. Pallito et al

Filing 78

ORDER Affirming, Approving, and Adopting 65 Report and Recommendation: 59 Dft's Motion for Summary Judgment is GRANTED in part and DENIED in part; 58 Pltf's Motion for Summary Judgment is DENIED as to all claims to which dfts are en titled to summary judgment and DENIED without prejudice as to pltf's claim re: access to a religiously appropriate diet. Summary judgment motions as to this claim shall be filed on or before 4/22/2011. This matter is returned to Magistrate Judge John M. Conroy for further proceedings. Signed by Judge J. Garvan Murtha on 3/24/2011. (kak)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT THURMOND McMICHAEL, Plaintiff v. ANDREW PALLITO, ROBERT KUPEC, JAY SIMONS, PHIL FERNANDEZ, STAN MORSE, DAVID BULEY, STEPHEN McCARTHY and BARBARA LESTER, Defendants : : : : : : : : : : :

File No. 1:09-cv-00130-jgm-jmc

ORDER The Magistrate Judge's Report and Recommendation was filed January 27, 2011. (Doc. 65.) After de novo review and over objection, the Report and Recommendation is AFFIRMED, APPROVED and ADOPTED. See 28 U.S.C. § 636(b)(1). Defendants' Motion for Summary Judgment (Doc. 59) is GRANTED in part and DENIED in part. Specifically, all claims for damages against Defendants in their official capacities are DISMISSED. Because Plaintiff has failed to demonstrate a physical injury, all claims for compensatory damages are DISMISSED. Further, the Court finds there is no basis for an award of punitive damages; therefore, claims for such damages are DISMISSED as a matter of law. All claims brought against Defendants Pallito and Kupec in their individual capacities are DISMISSED for lack of personal involvement. Plaintiff's claims relating to the lack of running water and adequate heat, his placement in close custody, and the

Department of Corrections' failure to report and investigate a hate crime are DISMISSED. Defendants' Motion for Summary Judgment is otherwise DENIED. Plaintiff's Motion for Summary Judgment (Doc. 58) is DENIED as to all claims to which Defendants are entitled to summary judgment. As to the sole remaining claim ­ the question of Plaintiff's access to a religiously appropriate diet ­ Plaintiff's motion is DENIED without prejudice. Motions for summary judgment as to this claim shall be filed on or before April 22, 2011. This matter is returned to Magistrate Judge John M. Conroy for further proceedings. SO ORDERED. Dated at Brattleboro, in the District of Vermont, this 24th day of March, 2011.

/s/ J. Garvan Murtha Honorable J. Garvan Murtha Senior United States District Judge

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