Opinion
Civ. 9:15-CV-1083 (DNH/DJS)
07-24-2023
TERRY DAUM, Plaintiff, v. DEVLIN, et. al., Defendants.
TERRY DAUM, Plaintiff, Pro Se HON. LETITIA JAMES, Attorney General of the State of New York Attorney for Defendants, THOMAS A. CULLEN, ESQ. Assistant Attorney General
TERRY DAUM, Plaintiff, Pro Se
HON. LETITIA JAMES, Attorney General of the State of New York Attorney for Defendants, THOMAS A. CULLEN, ESQ. Assistant Attorney General
ORDER
DANIEL J. STEWART, United States Magistrate Judge
Plaintiff's claims for sexual assault and failure to intervene against Defendants Devlin, Stickney, and Cross were dismissed on initial review under 28 U.S.C. §§ 1915(e) & 1915A. Dkt. No. 7 at pp. 9-11 & 13. Other claims proceeded against these individuals, with the matter ultimately proceeding to trial at which a verdict for Defendants was reached. See Dkt. Nos. 173 & 174. Plaintiff appealed and the Second Circuit vacated the District Court's Order dismissing those claims upon initial review and remanded the matter. Dkt. No. 191.
Combined, sections 1915(e) and 1915A require the District Court to conduct an initial review of prisoner, in forma pauperis complaints to assess whether they state a plausible cause of action. See, e.g., Bussie v. Boehner, 21 F.Supp.3d 244, 245 (E.D.N.Y. 2014). Given that the prior initial review order has been vacated, this Court must conduct a new review. In light of the Second Circuit's conclusion that the sexual assault claim “permit[s] a plausible inference” that the alleged assault lacked any penological purpose, Dkt. No. 191 at p. 4, the Court concludes that Defendants must respond to that claim and the related failure to intervene claim.
ACCORDINGLY, it is hereby
ORDERED, that Defendants shall answer or otherwise move with respect to those allegations in the Complaint on or before August 31, 2023; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties to this action.