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finding the continuing violation doctrine inapplicable to claim that the defendants had retained the plaintiff in administrative segregation for 161 days without meaningful review
Summary of this case from Smith v. AnnucciOpinion
9:01-CV-1039.
September 24, 2008
SAMUEL CABASSA, 84-A-0364, UpState Correctional facility, Malone, NY.
DAVID L. FRUCHTER, ESQ., Asst. Attorney General, HON. ANDREW M. CUOMO, Attorney General of the State of New York, Attorney for Defendants, Department of Law, The Capitol, Albany, New York.
ORDER
Plaintiff, Samuel Cabassa, brought this civil rights action pursuant to 42 U.S.C. § 1983. In a Report Recommendation dated June 30, 2008, the Honorable George H. Lowe, United States Magistrate Judge, recommended that defendants' second motion for summary judgment (Docket No. 81) be granted in part and denied in part. Objections to the Report Recommendation have been filed by the parties.
Based upon a de novo review of the portions of the Report-Recommendation to which the parties have objected, the Report-Recommendation is accepted and adopted. See 28 U.S.C. 636(b)(1).
Accordingly, it is
ORDERED that
1. Defendants' motion to dismiss is GRANTED in part and DENIED in part as follows:
A. Plaintiffs Fourth Cause of Action is DISMISSED in its entirety;
B. Plaintiffs Fifth Cause of Action is DISMISSED to the extent that it asserts:
(a) Any Fourteenth Amendment procedural due process claim whatsoever;
(b) A First Amendment access to courts claim against defendant Hans Walker;
(c) A First Amendment retaliation claim against defendant Hans Walker;
2. Defendants' second motion for summary judgment is otherwise DENIED, so that, surviving that motion is:
(a) Plaintiffs First Amendment access-to-courts claim against defendants D.W. Seitz and Craig Gummerson asserted in the Fourth Amended Complaint's Fifth Cause of Action; and
(b) Plaintiffs First Amendment retaliation claim against defendants D.W. Seitz and Craig Gummerson also asserted in the Fifth Cause of Action.
IT IS SO ORDERED.