Byrne v. Trudell et al

Filing 28

ORDER ADOPTING 24 REPORT AND RECOMMENDATION ; granting in part and denying in part 12 Motion to Dismiss; denying 17 Motion to Strike. This matter is returned to Magistrate Judge John M. Conroy for further proceedings. It is further certified that any appeal taken in forma pauperis from this Order would not be taken in good faith because such an appeal would be frivolous. Signed by District Judge J. Garvan Murtha on 5/21/2013. (wjf)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

JUSTIN L. BYRNE,
Plaintiff,
v.
MARY TRUDELL, JENNA GOGUEN,
JOANNE PEREIRA, TOM DUNN,
ANDREW PALLITO, JEFFREY LEGGIO,
and DAVE NESBITT,
Defendants.

:
:
:
:
:
:
:
:
:
:

File No. 1:12-cv-245-jgm-jmc

ORDER
The Magistrate Judge's Report and Recommendation was filed March 18, 2013.
(Doc. 24.) 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 to Dismiss (Doc. 12) is GRANTED in part and DENIED in
part as follows:
1.

Pursuant to the doctrine of sovereign immunity, to the extent Plaintiff

brings his § 1983 claims against Defendants Pallito and Pereira for money damages in
their official capacities, those claims are DISMISSED.
2.

Due to their lack of personal involvement, the Fourteenth Amendment

claims against Defendants Pereira and Dunn, as well as the Eighth and Fourteenth
Amendment claims against Defendants Leggio and Nesbitt are DISMISSED.
3.

All Eighth Amendment claims are DISMISSED for failure to allege

violation of a federal right.
4.

The Fourteenth Amendment claims against Defendants Leggio and

Nesbitt are DISMISSED for failure to allege violation of a federal right.

5.

Pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), to the extent Plaintiff

seeks immediate release from incarceration, this request for relief is DISMISSED.
6.

All claims for punitive damages claims against Defendants Leggio,

Nesbitt, Pallito, Pereira, and Dunn are DISMISSED.
7.

Pursuant to the Vermont Tort Claims Act, all state tort claims against

Defendants Pallito, Pereira, and Dunn are DISMISSED.
8.

All remaining bases on which Defendants move to dismiss Plaintiff’s

claims are DENIED.
9.

Plaintiff’s “Motion to Strike Pursuant to Rule 12(f)(2)” (Doc. 17) is

DENIED.
This matter is returned to Magistrate Judge John M. Conroy for further
proceedings.
It is further certified that any appeal taken in forma pauperis from this Order
would not be taken in good faith because such an appeal would be frivolous. See 28
U.S.C. § 1915(a)(3).
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 21st day of May, 2013.

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