Nicholas v. City of Schenectady et al
| Michael Nicholas |
| City of Schenectady, City of Schenectady Police Department, Luciano Savoia, Michael Hudson, Craig Comley, Michael Crounse, Cris Semione and United States Marshal Al Dwyer |
| 1:2015cv00402 |
| April 3, 2015 |
| US District Court for the Northern District of New York |
| Albany Office |
| Schenectady |
| Christian F. Hummel |
| Glenn T. Suddaby |
| Other Civil Rights |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
19
DECISION AND ORDER: Ordered that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 10 ) is Accepted and Adopted in its entirety; Ordered that all claims against Defendant U.S. Marshal Al Dwyer, insofar as brought pursuant to 42 U.S.C. 1 983, shall be treated as if brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 28 U.S.C. 1331; Ordered that the following claims are Dismissed with prejudice: (1) Plaintiff's claims against the individual Def endants in their official capacities; (2) Plaintiff's Eighth Amendment claims against all Defendants; (3) Plaintiff's Ninth Amendment claims against all Defendants; Ordered that the following claims are Dismissed without prejudice: (1) Plai ntiff's First Amendment claims against all Defendants; (2) Plaintiff's Fourth Amendment malicious prosecution claims against all Defendants; and (3) Plaintiff's Fourteenth Amendment claims against all Defendants, including those claims made by Plaintiff as Fifth Amendment claims, but have been determined to be Fourteenth Amendment claims as set forth in the Report and Recommendation and by this Court. The following claims Survive Defendants' Motion: (1) Plaintiff's Four th Amendment claims for unlawful search and seizure, excessive force, and false arrest and imprisonment against Defendants Savoia, Hudson, Semione, Crounse and Comley in their individual capacities; and (2) All claims against Defendant Dwyer which cl aims shall be treated as if brought pursuant to Bivens vs. Six Unknown Named Agents of the Federal Bureau of Narcotics, 28 U.S.C. 1331. The Clerk of the Court is directed to terminate City of Schenectady and City of Schenectady Police Department. Signed by Chief Judge Glenn T. Suddaby on 10/08/2015. (hmr)
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Filing
5
DECISION AND ORDER: that Magistrate Judge Hummel's Report-Recommendation 4 is Accepted and Adopted in its entirety; that the following claims are Dismissed with prejudice and without leave to amend: Plaintiff's claims against Defendants S avoia, Hudson, Crounse, Semione and Comley in their official capacities and Plaintiff's Eighth Amendment claims and that the following claims shall be Dismissed with prejudice and without further order of this Court unless, within thirty (30) da ys of the date of this Decision and Order, Plaintiff submits an Amended Complaint that corrects the pleading defects contained in those claims (in accordance with Magistrate Judge Hummel's Report-Recommendation): Plaintiff's Fourteenth Amen dment claims; and Plaintiff's malicious prosecution claim and that the following claims survive the Court's initial review of Plaintiff's Complaint: Plaintiff's Fourth Amendment claims against Defendants Savoia, Hudson, Crounse, S emione, Comley, and Dwyer in the individual capacities; Plaintiff's Fifth Amendment claims against Defendants Savoia, Hudson, Crounse, Semione, Comley and Dwyer in their individual capacities and Plaintiff's remaining claims against Defenda nts City of Schenectady and the Schenectady Police Department and that any Amended Complaint Plaintiff submits shall be a complete pleading, which will supersede the original Complaint, and may not incorporate any portion of the original Complaint by reference, in accordance with Local Rule 7.1(a)(4) of the Local Rules of Practice for this District and that the Clerk of the Court shall issue Summonses for Defendants and forward them, along with copies of the original Complaint and General Order 25, to the United States Marshal for service upon Defendants and that Defendants or their counsel shall provide a formal response to the Complaint, in accordance with the Federal Rules of Civil Procedure, as it relates to the claims against them.Signed by Judge Glenn T. Suddaby on 06/25/2015. (hmr)
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