Phelan v. Quinn et al
| Kenneth J. Phelan |
| Quinn, Swan, McDonald, Warrington, Washer, Gleason, Minal, Torres, Owens, Gebo, Fuller, Kiser, Murphy and Ted |
| 9:2011cv00314 |
| March 21, 2011 |
| US District Court for the Northern District of New York |
| Prisoner Office |
| Washington |
| David R. Homer |
| David N. Hurd |
| Civil Rights |
| 42 U.S.C. ยง 12101 |
| Plaintiff |
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Filing
95
DECISION AND ORDER: ORDERED that 90 Report and Recommendation is adopted in part and rejected in part. ORDERED that 76 Motion for Summary Judgment is GRANTED in part and DENIED in part; Defendants' motion is GRANTED as to: (a) plaint iff's First Amendment claim against defendants Swan, Hayes, and Gebo; (b) plaintiff's claims under the ADA; (c) defendants' exhaustion defense as it relates to the December 29, 2010 assault and March 9, 2011 and March 13, 2011 cell sea rches; (d) plaintiff's Eighth Amendment excessive force claim against defendants Owen, Keiser, Murphy, Fuller, and Gebo, and these claims dismissed. Defendants' motion is DENIED as to: (a) defendants McDonald and Warrington's exhaust ion defense relating to the January 21, 2011 cell search; and (b) defendants McDonald and Warrington's qualified immunity defense as it relates to the January 21, 2011 cell search. The Third Amended Complaint is DISMISSED against defendants Gebo, Swan, Owens, Fuller, Keiser, Murphy, and Hayes. The only claim surviving is the January 21, 2011 cell search against defendants McDonald and Warrington. This matter is referred back to Magistrate Judge Hummel for the assignment of trial counsel within thirty (30 days). Upon the assignment of trial counsel, the matter shall be forwarded to the undersigned for a trial date to be set. Signed by Judge David N. Hurd on 2/26/15. {order served via regular mail on plaintiff}(nas)
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Filing
45
DECISION and ORDER: The 43 Report and Recommendation is accepted in whole. ORDERED that 36 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part: Plaintiff's failure to protect claims against defendants Q uinn, Manell, Torres, and Washer are DISMISSED; Plaintiff's retaliation claims against defendants McDonald, Warrington, Swan, and Gebo REMAIN; The surviving claims and defendants be consolidated into a final, third amended complaint, which s hould contain all relevant facts regarding these claims as alleged in plaintiff's opposition papers to defendants' present motion; and Upon the filing of the third amended complaint, the pleadings shall be returned to Magistrate Judge Hummel for further review to ensure compliance. Signed by Judge David N. Hurd on 10/23/12. {order served via regular mail on plaintiff(nas )
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Filing
34
DECISION and ORDER: The 33 Report and Recommendation is accepted in whole. ORDERED that 29 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part; Plaintiff's claims for damages against the individual defenda nts in both their individual and official capacities under the Americans with Disabilities Act are DISMISSED; Plaintiff's claims for injunctive relief against the individual defendants in their official capacities REMAIN; Plaintiff's re maining claims as to defendants Quinn, Minal, Torres, and Washer are DISMISSED without prejudice to allow amendment as directed in this Order. Plaintiff's claim against Nurse Ted is DISMISSED; and Plaintiff is granted until July 20, 2012, t o file a second amended complaint to assert causes of action for (a) the use of excessive force in violation of his Eighth Amendment right to be free from cruel and unusual punishment, (b) retaliation for filing complaints and grievances in violation of his First Amendment right to seek the redress of grievances, and (c) failing to protect Phelan from harm posed by other inmates in violationof his Eighth Amendment right to be free from cruel and unusual punishment. Signed by Judge David N. Hurd on 6/19/12. {order served via regular mail on all non-ecf parties}(nas, )
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