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16-1137 - Jackson v. Williams et al


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16-1137 - Jackson v. Williams et al
November 16, 2016
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REPORT-RECOMMENDATION AND ORDER: It is ORDERED that plaintiff's # 2 MOTION for Leave to Proceed in forma pauperis is GRANTED. It is RECOMMENDED that the following claims be DISMISSED with prejudice and without opportunity to amend: (1) plaintiff's third cause of action against defendant Williams in his individual capacity and the Utica Police Department for allowing arrest warrants to be conducted in the residence of a third party; and (2) plaintiff's fourth cause of action against defendant Williams in his individual capacity and the Utica Police Department for failing to hire a diverse S.W.A.T. team. It is further RECOMMENDED that the following claims be DISMISSED with prejudice against the Utica Police Department, but without prejudice to affording plaintiff an opportunity to amend his complaint to attempt set forth these claims against the proper municipal defendant: (1) plaintiff's first cause of action against the Utica Police Department for the for exercising a discriminatory policy of targeting minority homes; (2) plaintiff's second cause of action against the Utica Police Department for failing to instate a practice or policy regarding the ethical treatment of animals while conducting arrest warrants; and (3) plaintiff's fifth cause of action against the Utica Police Department for the failure to properly train officers in exercising reasonable care when confronting animals. It is further RECOMMENDED that all claims against the defendant officers in their official capacities be DISMISSED with prejudice and without opportunity to amend. It is further RECOMMENDED that the following claims be DISMISSED without prejudice and with opportunity to amend as set forth within this Report-Recommendation and Order: (1) plaintiff's sixth and seventh causes of action against defendant Cinque for negligent supervision of defendants Amerosa and Paladino; and (2) plaintiff's eighth and ninth causes of action against defendant Paladino for unlawful seizure arising from the killing of the dog. It is further RECOMMENDED that the following claims against defendant Williams in his individual capacity PROCEED: (1) plaintiff's first cause of action for exercising a discriminatory policy of targeting minority homes; (2) plaintiff's second cause of action for failing to instate a practice or policy regarding the ethical treatment of animals while conducting arrest warrants; and (3) plaintiff's fifth cause of action for the failure to properly train officers in exercising reasonable care when confronting pets. It is further RECOMMENDED that plaintiff's eighth and ninth causes of action against defendant Amerosa for unlawful seizure arising from the killing of the dog, King, PROCEED. It is further RECOMMENDED that plaintiff's tenth cause of action against defendants Amerosa and Paladino based on excessive force PROCEED. It is further RECOMMENDED that plaintiff's claims, insofar as they may be read as seeking punitive damages against the City of Utica, be DISMISSED with prejudice and without opportunity to amend. It is further RECOMMENDED that plaintiff's claims brought under the New York State Constitution be DISMISSED with prejudice, for the reasons set forth within this Report-Recommendation and Order. It is further RECOMMENDED that, if this Report-Recommendation and Order is adopted in full, plaintiff be permitted (30) days from the date of that Order adopting this Report-Recommendation and Order to file his amended complaint should he wish to proceed on the claims that are dismissed without prejudice. It is further RECOMMENDED that if this Report-Recommendation and Order is adopted in full, the District Judge issue summonses and General Order 25, to the United States Marshal for service upon the defendants. (Objections to R&R due by 12/5/2016, Case Review Deadline 12/7/2016) Signed by Magistrate Judge Christian F. Hummel on 11/16/2016. (Attachments: # (1) Unpublished Decisions) [Copy served upon pro se plaintiff via regular mail.](mc)
March 28, 2017
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DECISION AND ORDERED, that the Report-Recommendation (Dkt. No. 8) is ADOPTED in part and REJECTED in part; and it is further ORDERED, that Jacksons third cause of action against Williams in his individual capacity and the Utica Police Department for allowing arrest warrants to be conducted in the residence of a third party is DISMISSED without leave to amend; and it is furtherORDERED, that the following claims are DISMISSED without leave to amend as to the Utica Police Department, but without prejudice to giving Jackson an opportunity to amend his Complaint (Dkt. No. 1) to set forth these claims against the proper municipal defendant: (1) Jacksons first cause of action against the Utica Police Department for maintaining a discriminatory policy of targeting minority homes (2) Jacksons second cause of action against the Utica Police Department for failing to enact a policy regarding the ethical treatment of animals during the carrying out of arrest warrants; (3) Jacksons fourth cause of action against the Utica Police Department for failing to hire a diverse SWAT team; and (4) Jacksons fifth cause of action against the Utica Police Department for failing to properly train officers to exercise reasonable care in confronting animals; and it is further ORDERED, that all claims against the defendant officers in their official capacities are DISMISSED without leave to amend; and it is further ORDERED, that the following claims are DISMISSED with leave to amend: (1) Jacksons sixth and seventh causes of action against Cinque for negligent supervision of Amerosa and Paladino, and (2) Jacksons eighth and ninth causes of action against Paladino for unlawful seizure arising from the killing of the dog; and it is further ORDERED, that the following claims against Williams in his individual capacity are DISMISSED with leave to amend: (1) Jacksons first cause of action for maintaining a discriminatory policy of targeting minority homes, (2) Jacksons second cause of action for failing to enact a policy regarding the ethical treatment of animals during the carrying out of arrest warrants, (3) Jacksons fourth cause of action for failing to hire a diverse SWAT team, and (4) Jacksons fifth cause of action for failing to properly train officers to exercise reasonable care in confronting animals; and it is further ORDERED, that Jacksons tenth cause of action against Amerosa and Paladino based on excessive force, and Jacksons eighth and ninth causes of action against Amerosa for unlawful seizure arising from the killing of the dog, shall proceed; and it is further ORDERED, that Jacksons claims under the New York State Constitution are DISMISSED without leave to amend; and it is further ORDERED, that Jackson may amend his complaint within thirty (30) days of this Decision and Order in order to cure the deficiencies identified in the claims dismissed with leave to amend; and it is further ORDERED, that the Clerk of the Court issue summonses and forward them, along with copies of the Complaint (Dkt. No. 1) and General Order 25, to the United States Marshal for service upon Paladino and Amerosa. Signed by Senior Judge Lawrence E. Kahn on March 28, 2017. (Copy served via regular mail)(sas)