Shepherd v. Fischer et al
| Eon Shepherd |
| Brian Fischer, Lempke, Lester Wright, J. Bellnuer, Smith, Anuntiu, Rita Grinbergs, Pedro Diaz, Cordtlesne, Weissman, Lashway, Weinstock, ZenZen, Cunningham, Atkison, Csluen, Fairchild, Chesbrough, Parmer, T. Brousseau, Artus, K. Ripa, Maynard, Barber, Jones, Whipple, Carlee, Bower, Evans, Prebaluck, Cambria, Cesfa, Cusack, K. Bellamy, A. Hawthorne, Johnson, Cremans, Holmes, Basket, O'Neill, C. Gregory, B. White, N. Beizo, John Does and Jane Does et al |
| 9:2010cv01524 |
| December 17, 2010 |
| US District Court for the Northern District of New York |
| Prisoner Office |
| XX US, Outside State |
| David E. Peebles |
| Thomas J. McAvoy |
| Civil Rights |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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The following documents for this case are available for you to view or download:
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Filing
401
ORDER approving 400 Stipulation of Discontinuance. Signed by Magistrate Judge David E. Peebles on 6/10/2019. (Copy served upon plaintiff via regular mail)(sal )
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Filing
256
DECISION AND ORDER: ORDERED that 252 Report and Recommendation is accepted in part and rejected in part, as set forth in this Decision and Order. The Court Clerk's Office shall now schedule three trials for the remaining claims in acco rdance with the Court's September 22, 2015 Decision and Order, Dkt. No. 202, taking into account claims and defendants that are dismissed from the action by this Decision and Order. To aid the Court Clerk's Office in scheduling these trials , each part shall submit, within thirty (30) days, a status letter indicating the claims and defendants that remain pending and that they contend should be tried in each of the trials ordered by the Court on September 22, 2015, Dkt. No. 202. Signed by Senior Judge Thomas J. McAvoy on 3/30/17. {order served via regular mail on plaintiff)(nas, )
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Filing
202
DECISION AND ORDER: ORDERED that Plaintiff's objections to the report and recommendation, dkt. # 200 are hereby OVERRULED, and that the Report-Recommendation of Magistrate Judge Peebles, dkt. # 199 , is hereby ADOPTED, as follows: 1. Def endants' motion to sever, dkt. # 197 , is hereby GRANTED; and 2. Plaintiff's remaining claims in this action are hereby SEVERED, and the Court will conduct three distinct trials in this matter in the following fashion: a. The first trial shall address all claims and Defendants associated with Clinton Correctional Facility, as well as the medical indifference claim against Dr. Amatucci to include defendants from Downstate Correctional Facility, including Defendants Superintendent Art us, Dr. Amatucci, R.N. Lashway and Sgt. Menard; b. The second trial shall address all claims and defendants associated with events at the Five Points Correctional Facility, as against Defendants Sgt. Barber, C.O. Bower, C.O. Carlee, C.O. Cioffa, S gt. Jones, C.O. Prebalick, and Hearing Officer Ramus, as well as Plaintiffs due process claim against Deputy of Programming Cuningham at Green Haven Correctional Facility and against Defendant Norman Bezio; c. The third trial shall address all rema ining claims, including those arising from Upstate Correctional Facility and the excessive force claim against Officer Cambria based upon events at an indeterminate location. That trial will include the following defendants, C.O. Cambria, C.O. Belsio , Deputy Superintendent Colvin, R.N. Holmes, R.N. Fairchild, R.N. Atkinson, R.N. Chesbrough, Superintendent Lempke, Superintendent Rock, Sgt. Rowe, and C.O. Rozwell; d. Plaintiff's claims against Defendants Fischer and Wright are hereby DISMISS ED for lack of personal involvement; and e. Plaintiff's claims against Defendants Bellnier, Clemons, Johnson, Parmer, Perez, Smith, Thomas, Weinstock, and Weisman are hereby DISMISSED pursuant to the court's earlier order dismissing Plainti ff's deliberate medical indifference claims against them. However, Defendants' objections to the Report-Recommendation, dkt. # 200, are OVERRULED without prejudice to the extent they seek to have the Court dismiss any claims against Defend ant Amber Hawthorne because Hawthorne was not named in any Complaint and never served in the action. The status of Dr. Hawthorne in this matter is unclear. Defendants are incorrect in claiming that Hawthorne was never named in any Complaint in this a ction. Review of the record indicates that Defendant Dr. Hawthorne was named in both the original Complaint, dkt. # 2, and the Amended Complaint, dkt. # 45. It is unclear whether Dr. Hawthorne was ever served with process or either Complaint. The re cord reveals that service was returned un-executed on Dr. Hawthorne on July 29, 2011, before Plaintiff filed his Amended Complaint. See dkt. # 39. It is incumbent upon Plaintiff, who is now represented by pro bono counsel in this matter, see dkt. # 196, to address the status of Dr. Hawthorne in this matter before the case proceeds to trial. It is therefore ORDERED that the Plaintiff inform the Court within FOURTEEN (14) days to the date of this Order as to the status of Dr. Hawthorne in this m atter. Failure to respond to the Court's Order within the time specified will cause the Court to take appropriate action with respect to Defendant Hawthorne. Signed by Senior Judge Thomas J. McAvoy on 9/22/15. {order served via regular mail on plaintiff}(nas)
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Filing
195
DECISION AND ORDER: ORDERED that 194 Report and Recommendation is adopted. ORDERED that 174 Motion for Summary Judgment is granted in part and denied in part as follows: (1) Plaintiffs damage claims against the defendants in their official capacities are DISMISSED with prejudice;(2) Any cause of action based solely upon verbal harassment and threats is DISMISSED with prejudice; (3) Plaintiff's denial of court access claims are DISMISSED with prejudice; (4) Plaintiff's free e xercise and RLUIPA claims asserted against defendant Bellnier are DISMISSED with prejudice; (5) Plaintiff's failure to protect claim asserted against defendant Colvin is DISMISSED with prejudice; (6) Plaintiff's failure to protect claim ass erted against defendant Lempke is DISMISSED with prejudice; (7) Plaintiff's deliberate medical indifference claims asserted against Defendants Atkinson, Bellnier, Chesbrough, Clemons, Colvin, Fairchild, Holmes, Johson, Lempke, Parmer, Perez, Pr ebalick, Rock, Roew,Smith, Thomas, Weinstock, and Weissman are DISMISSED with prejudice; (8) Plaintiff's claims against the John Doe Defendants are DISMISSED with prejudice; (9) Plaintiff's claims against Defendants Whipple, Jones, Basket a nd Cusak are DISMISSED without prejudice, based on the fact that those Defendants were not served with the summons and complaint within sixty days of the filing of Plaintiff's complaint; and (10) Defendants motion is DENIED in all other respects. Signed by Senior Judge Thomas J. McAvoy on 3/18/15. {order served via regular mail on plaintiff}(nas)
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