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17-117 - Zavalidroga v. Madison County et al


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17-117 - Zavalidroga v. Madison County et al
April 14, 2017
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ORDER AND REPORT-RECOMMENDATION: It is ORDERED that Plaintiff's # 5 Second MOTION for Leave to Proceed in forma pauperis is GRANTED. It is further ORDERED that Plaintiff's # 10 request for Magistrate Judge Therese Wiley Dancks' recusal in this case is DENIED. It is RECOMMENDED that Plaintiff's # 11 Amended Complaint be DISMISSED upon initial review, except as to Plaintiff's Fourth, Eighth and Fourteenth Amendment claims against Defendants Riley and Nowak arising out of Plaintiff's conditions of confinement in the Madison County Jail, which the Court RECOMMENDS be allowed to proceed. It is further RECOMMENDED that dismissal of the amended complaint against Defendants Judge Eppolito, Mondrick, and Cowles be with prejudice on absolute immunity grounds. It is further RECOMMENDED that the dismissal of the amended complaint against the Madison County Sheriff's Department and Oneida City Police Department be with prejudice. It is further RECOMMENDED that dismissal of Plaintiff's § 1983 claim for civil conspiracy regarding Margaret asserted against Defendants John and Nancy Kish, Oneida City Police Officer Sarah Paul, Oneida Police Investigator Burgess, the Oneida City Hospital, RN Kopytowski, and all other Defendants against whom Plaintiff intended to assert the claim, be dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. It is further RECOMMENDED that dismissal of Plaintiff's § 1983 claims for false arrest or imprisonment and malicious prosecution asserted against unidentified Madison County Sheriff's Department personnel, Burgess, and all other Defendants against whom Plaintiff intended to assert the claim, be dismissed without prejudice under Heck. It is further RECOMMENDED that dismissal of the amended complaint against Madison County and the City of Oneida be with prejudice as to all claims dismissed under the Rooker-Feldman doctrine, and without prejudice as to all claims dismissed under Heck and claims arising out of Plaintiff's conditions of confinement. It is further RECOMMENDED that dismissal of the amended complaint against Defendants Meeker and Thompson be with leave to amend only as to Plaintiff's claims arising out of his conditions of confinement. It is further RECOMMENDED that dismissal of the conditions of confinement claims against Joshua Paul be with leave to amend. It is further RECOMMENDED that the District Court decline to accept supplemental jurisdiction over Plaintiff's state law claims for false arrest or imprisonment, malicious prosecution, conversation, and slander. It is ORDERED that the Clerk provide Plaintiff with copies of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). (Objections to R&R due by 5/1/2017, Case Review Deadline 5/5/2017) Signed by Magistrate Judge Therese Wiley Dancks on 4/14/2017. [Copy of Order and Report-Recommendation and unpublished decisions served upon pro se plaintiff via regular mail.](mc)
July 6, 2017
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DECISION AND ORDER: Based upon a de novo review of the portions of the # 14 Report-Recommendation to which plaintiff objected, the Report-Recommendation of Magistrate Judge Therese Wiley Dancks is accepted in whole. See 28 U.S.C. § 636(b)(1). It is ORDERED that the # 11 Amended Complaint is DISMISSED in its entirety except as to the Fourth, Eighth, and Fourteenth Amendment claims against Riley and Nowak arising out of plaintiff's conditions of confinement in the Madison County Jail. It is further ORDERED that the claims against Eppolito, Mondrick, Cowles, the Madison County Sheriff's Department, and the Oneida City Police Department are DISMISSED with prejudice. It is further ORDERED that the § 1983 claim for civil conspiracy regarding Margaret Zavalidroga against John and Nancy Kish, Sarah Paul, Burgess, the Oneida City Hospital, Kopytowski, and all other defendants against whom plaintiff intended to assert the claim, is DISMISSED under the Rooker-Feldman doctrine. It is further ORDERED that the § 1983 claims for false arrest or imprisonment and malicious prosecution asserted against unidentified Madison County Sheriff's Department personnel, Burgess, and all other defendants against whom plaintiff intended to assert the claim, is DISMISSED without prejudice. It is further ORDERED that the claims against Madison County and the City of Oneida are DISMISSED with prejudice as to all claims dismissed under the Rooker-Feldman doctrine, and without prejudice as to all claims dismissed under Heck v. Humphrey and claims arising out of plaintiff's conditions of confinement. It is further ORDERED that the claims against Meeker and Thompson are DISMISSED with leave to amend only as to plaintiff's claims arising out of his conditions of confinement. It is further ORDERED that the claims against Joshua Paul are DISMISSED with leave to amend. It is further ORDERED that the exercise of supplemental jurisdiction is declined over plaintiff's state law claims for false arrest or imprisonment, malicious prosecution, conversation, and slander. It is further ORDERED that Plaintiff will have thirty (30) days in which to file an amended complaint, should he choose, as to those claims which are being dismissed with leave to amend. In the event plaintiff submits an amended complaint including those claims which may now proceed and any other claims for which he has been granted leave to amend, the file will be referred back to Magistrate Judge Dancks for review of the amended complaint. Signed by Judge David N. Hurd on 7/6/2017.[Copy served upon pro se plaintiff via regular mail.](mc)