Opinion
No. 03 Civ. 7759 (LAK).
September 23, 2004
ORDER
Magistrate Judge Henry B. Pitman, in a report and recommendation dated August 9, 2004, recommended that defendants' motion to dismiss the complaint be granted in part and denied in part. Both sides have objected.
Plaintiff's Objections
Plaintiff objects to the report and recommendation insofar as it recommended dismissal of the claims against defendant Goord on the ground that the complaint fails adequately to allege his personal involvement in the violations of Eighth and Fourteenth Amendment rights and against defendant Greiner on that ground and on the additional ground of qualified immunity.
1. Plaintiff's objection with respect to the treatment of personal involvement is sustained. As was the case in Atkinson v. Goord, 01 Civ. 0761 (LAK), decided today, the report and recommendation does not take into account allegations of the complaint which, if true, would establish Goord's personal involvement. See Cpt ¶¶ 26, 30, 32, 38, 39.
2. The report and recommendation recommends dismissal as to defendant Greiner on qualified immunity grounds on the theory that it was not clearly established that his affirmance of the denial of a grievance constituted personal involvement. This Court respectfully disagrees in light of Williams v. Smith, 781 F.2d 319 (2d Cir. 1986). Atkinson v. Goord, No. 01-0761 (LAK) (S.D.N.Y. dated Sept. 23, 2004).
Accordingly, plaintiff's objections are sustained.Defendants' Objections
3. Defendants first object to Judge Pitman's conclusion that there is a triable issue of fact as to exhaustion. The objection is overruled substantially for the reasons set forth in the report and recommendation and in plaintiff's response to defendants' objection.
4. Defendants' objection to the recommendation that the motion of defendants Maddox and Selsky to dismiss so much of the complaint as relates to the July 26, 2001 disciplinary hearing is overruled, substantially for the reasons set forth in the report and recommendation and in plaintiff's response to defendants' objection.
Conclusion
Accordingly, defendants' motion to dismiss the complaint is granted to the extent that plaintiff's claims against defendant Selsky, except for the claim of supervisory liability concerning the denial of procedural due process at the March and July 2001 disciplinary hearings, are dismissed. The motion is denied in all other respects.
SO ORDERED.