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10-1524 - Shepherd v. Fischer et al


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10-1524 - Shepherd v. Fischer et al
February 23, 2015
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REPORT AND RECOMMENDATION: RECOMMENDED that defendants' motion for partial summary judgment (Dkt. No. 174), be GRANTED, in part, and that the following claims be dismissed, with prejudice: (1) Plaintiff's damage claims against the defendants in their official capacities, (2) Any cause of action based solely upon verbal harassment and threats, (3) Plaintiff's denial of court access claims, (4) Plaintiff's free exercise and RLUIPA claim asserted against defendant Bellnier, (5) Plaintiff's failure to protect claim asserted against defendant Colvin, (6) Plaintiff's failure to protect claim asserted against defendant Lempke, (7) Plaintiff's deliberate medical indifference claims asserted against defendants Atkinson, Bellnier, Chesbrough, Clemons, Colvin, Fairchild, Holmes, Johnson, Lempke, Parmer, Perez, Prebalick, Rock, Roew, Smith, Thomas, Weinstock, and Weissman; and (8) Plaintiff's claims against all of the John Doe defendants. RECOMMENDED that plaintiff's claims against Whipple, Jones, Basket, and Cusack be DISMISSED, without prejudice, based upon the fact that those defendants were not served with the summons and complaint within sixty days of the filing of plaintiff's complaint. RECOMMENDED that, except as to the foregoing, defendants' motion otherwise be DENIED. Objections to R&R due by 3/12/2015 Case Review Deadline 3/16/2015. Signed by Magistrate Judge David E. Peebles on 2/23/15. {r&r served via regular mail on plaintiff}(nas)
March 18, 2015
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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 exercise 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 asserted 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, Prebalick, 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 and 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)
August 17, 2015
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REPORT AND RECOMMENDATION: RECOMMENDED as follows: (1) Defendants' motion to sever (Dkt. No. 197) should be GRANTED. (2) Plaintiff's remaining claims in this action should be severed and the court should conduct three distinct trials. The first trial should include all claims and defendants from Clinton, plus a medical indifference claim against Dr. Amatucci arising from Downstate, to include the following defendants: Superintendent Artus, Dr. Amatucci, R.N. Lashway, and Sgt. Menard. The second trial should address all claims and defendants involving events at the Five Points Correctional Facility, as against defendants Sgt. Barber, C.O. Bower, C.O. Carlee, C.O. Cioffa, Sgt. Jones, C.O. Prebalick, Hearing Officer Ramus, plus the plaintiff's due process claim against Deputy of Programming Cunningham at Green Haven and defendant Norman Bezio. The third trial should include all remaining claims, including those arising from Upstate Correctional Facility, plus the excessive force claim against Officer Cambria based upon events at an indeterminate location, and would include the following defendants: C.O. Cambria, C.O. Belsio, Deputy Superintendent Colvin, Dr. Hawthorne, R.N. Holmes, R.N. Fairchild, R.N. Atkinson, R.N. Chesbrough, Superintendent Lempke, Superintendent Rock, Sgt. Rowe, and C.O. Rozwell. (3) Plaintiff's claims against defendants Fischer and Wright should be DISMISSED based upon lack of personal involvement. (4) Plaintiff's claims against defendants Bellnier, Clemons, Johnson, Parmer, Perez, Smith, Thomas, Weinstock, and Weismann should be DISMISSED pursuant to the court's earlier order dismissing plaintiff's deliberate medical indifference claims against them. Objections to R&R due by 9/3/2015 Case Review Deadline 9/8/2015. Signed by Magistrate Judge David E. Peebles on 8/17/15. {r&r served via regular mail on plaintiff}(nas)
September 22, 2015
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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. Defendants' 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 Artus, 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, Sgt. 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 remaining 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 DISMISSED 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 Plaintiff'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 Defendant 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 action. 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 record 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 matter. 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)
October 28, 2016
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REPORT AND RECOMMENDATION: See pages 30, 31 and 32 for recommendation of claims remaining and dismissed; RECOMMENDED that the matter should be set down for trial involving the remaining claims. ORDERED that the court's order dismissing the claims asserted against defendant Hawthorne, Dkt. No. 224, be VACATED and the claims asserted against that individual arising from the incidents described in paragraphs 6, 93, and 102 of plaintiff's amended complaint be deemed asserted against defendant Lashway and proceed to trial. Objections to R&R due by 11/14/2016 Case Review Deadline 11/18/2016. Signed by Magistrate Judge David E. Peebles on 10/28/16. {r&r served via regular mail on plaintiff}(nas, )
March 30, 2017
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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 accordance 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, )