Summary
explaining that, where the plaintiff did not respond to a summary judgment motion, “. . . the Court will accept the facts as set forth in [the defendants' Statement of Material Facts]. . . supplemented by [the plaintiff's] verified complaint. . . as true.”
Summary of this case from Chapman v. BeliveauOpinion
9:11-CV-1353 (GTS/RFT)
2013-09-27
DAVID DOUGLAS, SR., Plaintiff, v. PERRARA, Corrr. Officer, Great Meadow C.F.; LAWRENCE, Corr. Officer, Great Meadow C.F.; WHITTIER, Corr. Officer, Great Meadow C.F.; MULLIGAN, Corr. Officer, Great Meadow C.F.; DELUCA, Corr. Sergeant, Great Meadow C.F.; and RUSSEL, Deputy Superintendent, Great Meadow C.F, Defendants.
DAVID DOUGLAS, SR. Plaintiff, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants COLLEEN D. GALLIGAN, ESQ. Assistant Attorney General
APPEARANCES: DAVID DOUGLAS, SR.
Plaintiff, Pro Se
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
OF COUNSEL: COLLEEN D. GALLIGAN, ESQ.
Assistant Attorney General
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by David Douglas, Sr., ("Plaintiff") against the six above-captioned New York State correctional employees, are the following: (1) Defendants' motion for partial summary judgment (requesting the dismissal of Plaintiff's claims against Defendant Russell, and his claims against the remaining Defendants in their official capacities); and (2) United States Magistrate Judge Randolph F. Treece's Report- Recommendation recommending that Defendants' motion be granted. (Dkt. Nos. 70, 80.) Neither party filed an objection to the Report-Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) After carefully reviewing the relevant filings in this action, the Court can find no clear error in the Report-Recommendation: Magistrate Judge Treece employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court accepts and adopts the Report-Recommendation for the reasons stated therein. (Dkt. No. 80.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece's Report-Recommendation (Dkt. No. 80) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants' motion for partial summary judgment (Dkt. No. 70) is GRANTED; and it is further
ORDERED that the following claims are DISMISSED from this action: (a) all claims asserted against Defendant Russell, and (b) all claims asserted against Defendants in their official capacities only. The Clerk is directed to terminate Defendant Russell from this action; and it is further
ORDERED that the following claims REMAIN PENDING in this action: (a) Plaintiff's claim that Defendants Whittier, Mulligan, Perrara and/or Lawrence subjected him to inadequate prison conditions by depriving him of meals for approximately five consecutive days in December 2009, in violation of the Eighth Amendment; (b) Plaintiff's claim that Defendants Whittier, Mulligan, Perrara and Lawrence used excessive force against him, and that Defendant Deluca failed to protect him from the use of that excessive force, in violation of the Eighth Amendment and New York State common law; and (c) Plaintiff's claim that Defendant Deluca was deliberately indifferent to Plaintiff's serious medical needs (following the assaults) in violation of the Eighth Amendment; and it is further
ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for appointment of counsel for an appeal is granted; and it is further
ORDERED that upon assignment of Pro Bono Counsel, a final pretrial conference with counsel will be scheduled in this action before the undersigned, at which time the Court will schedule a jury trial for Plaintiff's remaining claims as set forth above against Defendants Whittier, Mulligan, Perrara, Lawrence and DeLuca. Counsel are directed to appear at the final pretrial conference with settlement authority from the parties. Dated: September 27, 2013
Syracuse, New York
___________________
Hon. Glenn T. Suddaby
U.S. District Judge