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14-556 - Trapani v. Pullen et al


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14-556 - Trapani v. Pullen et al
February 18, 2016
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ORDER AND REPORT-RECOMMENDATION: MENDED that Defendants' Rule 41(b) motion (Dkt. No. 23) to dismiss Plaintiff's Complaint (Dkt. No. 1) be DENIED as moot. RECOMMENDED that Defendants Rule 12(b)(6) motion (Dkt. No. 23) to dismiss certain claims in Plaintiff's Complaint (Dkt. No. 1) be GRANTED in part and DENIED in part. RECOMMENDED that Defendants' Rule 12(b)(6) motion be DENIED as to the following claims: (1) Eighth Amendment excessive force claim against Defendant LaMare and Defendants John Does ## 16-20; and (2) First Amendment free exercise claim against Defendant King, Defendant Syed, and Defendant Jane Doe #5. RECOMMENDED that Defendants' Rule 12(b)(6) motion be GRANTED WITH LEAVE TO AMEND as to the following claims: (1) Eighth Amendment excessive force claim against Defendant Martuscello; and (2) First Amendment retaliation claim against Defendant Pullen and Defendant McGlynn. RECOMMENDED that Defendants' Rule 12(b)(6) motion be GRANTED WITHOUT LEAVE TO AMEND as to the following claims: (1) RLUIPA claim against Defendant King, Defendant Syed, and Defendant Jane Doe #5; and (2) all claims seeking declaratory and injunctive relief. RECOMMENDED that the case be DISMISSED against Defendant Martuscello, Defendant Pullen, and Defendant McGlynn. Objections to R&R due by 3/7/2016 Case Review Deadline 3/10/2016. Signed by Magistrate Judge Therese Wiley Dancks on 2/17/16. {r&r served via regular mail on plaintiff}(nas, )
March 15, 2016
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DECISION AND ORDER: ORDERED that 37 Report and Recommendation is adopted.ORDERED that Defendants' Rule 41(b) motion to dismiss, dkt. # 23, is hereby DENIED as moot; Defendants' 12(b)(6) motion to dismiss is hereby GRANTED in part and DENIED in part, as follows: a. The motion is GRANTED without prejudice as to Plaintiff's claims for: (1) excessive force in violation of the Eighth Amended against Defendant Martuscello; and (2) retaliation in violation of the First Amendment against Defendants Pullen and McGlynn; b. The motion is GRANTED with prejudice as to Plaintiff's: (1) RLUIPA claim against Defendants King, Syed, and Jane Doe #5; and (2) all claims seeking declaratory and injunctive relief; and c. Denied in all other respects. The Complaint is hereby DISMISSED against Defendants Martuscello, Pullen and McGylnn; and Plaintiff may file an Amended Complaint that complies with the terms of Magistrate Judge Wiley Dancks Report-Recommendation within twenty-one (21) days of the date of this order. Failure to file an Amended Complaint will cause the Court to consider abandoned the claims for which Plaintiff was given leave to re-plead. Signed by Senior Judge Thomas J. McAvoy on 3/14/16.{order served via regular mail on plaintiff} (nas)