Summary
adopting magistrate's recommended findings and decision to deny summary judgment and which observed that plaintiff's excessive force claims relied almost exclusively on his own deposition testimony; that rational jury could credit plaintiff's description of alleged assaults by correctional officers; that "although plaintiff's inconsistencies provide ‘ammunition for cross-examination,’ they do not provide a basis for this court to recommend dismissal of his excessive force claims as a matter of law"; and setting forth string cite of other cases where plaintiff's account of events was sufficient to withstand summary judgment
Summary of this case from Ballard v. DelgadoOpinion
9:14-CV-115 (BKS/ATB)
09-27-2017
GREGORY GALBERTH, Plaintiff, v. C. DURKIN, Sergeant, Clinton Correctional Facility, et al., Defendants.
Appearances: Gregory Galberth 03-A-0661 Great Meadow Correctional Facility P.O. Box 51 Comstock, NY 12821 Plaintiff, pro se Denise P. Buckley, Esq. Hon. Eric T. Schneiderman Office of New York State Attorney General The Capitol Albany, NY 12224 Attorney for Defendants
Appearances:
Gregory Galberth
03-A-0661
Great Meadow Correctional Facility
P.O. Box 51
Comstock, NY 12821
Plaintiff, pro se Denise P. Buckley, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
Pro se Plaintiff Gregory Galberth brought this action against Defendants C. Durkin, Shawn P. Hamelin, B. Plumbly, R. Sears, W. Bisso, R. Russell, E. Barnes and F. Tuller under 42 U.S.C. § 1983 alleging that Defendants violated his constitutional rights in four separate excessive force incidents while the Plaintiff was an inmate at the Clinton Correctional Facility. Dkt. No. 1. On December 1, 2016, Defendants filed a motion for summary judgment seeking dismissal of the complaint in its entirety. Dkt. No. 91. Plaintiff filed a response in opposition to the motion on August 21, 2017 (Dkt. No. 124), and Defendants filed a reply on August 28, 2017 (Dkt. No. 125). This matter was referred to United States Magistrate Judge Andrew T. Baxter who, on August 31, 2017, issued an Order and Report-Recommendation recommending that Defendants' motion for summary judgment be granted with respect to the excessive force claims as against defendants Russell, Barnes, Hamelin, Tuller, Sears, Bisso, and Durkin in connection with the November 5, 2011 use of force, and otherwise denied. Dkt. No. 128. Magistrate Judge Baxter advised the parties that, under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), they had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen days would preclude appellate review. Dkt. No. 128, at 19. No objections to the Report-Recommendation have been filed.
As no objections to the Report-Recommendation have been filed, and the time for filing objections has expired, the Court reviews the Report-Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee's note to 1983 amendment. Having reviewed the Report-Recommendation for clear error and found none, the Court adopts it in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 128) is ADOPTED in its entirety; and it is further
ORDERED that Defendant's summary judgment motion (Dkt. No. 91) is GRANTED only with respect to the excessive force claims as against Defendants Russell, Barnes, Hamelin, Tuller, Sears, Bisso, and Durkin in connection with the November 5, 2011 use of force and otherwise DENIED; and it is further
ORDERED that Defendants Russell, Barnes, Hamelin, Tuller, and Durkin are DISMISSED as Defendants from this action; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: September 27, 2017
Syracuse, New York
/s/_________
Brenda K. Sannes
U.S. District Judge