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15-1028 - Flynn v. Ward et al


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15-1028 - Flynn v. Ward et al
December 4, 2015
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DECISION AND ORDER: ORDERED that the complaint (Dkt. No. 1) is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. ORDERED that, if plaintiff wishes to proceed with this action he must file an amended complaint within thirty (30) days of the filing date of this Decision and Order. ORDERED that upon the filing of an amended complaint as directed above, the Clerk shall return the file to the Court for further review. ORDERED that, in the event plaintiff fails to file a signed amended complaint within thirty (30) days of the filing date of this Decision and Order, the Clerk shall enter judgment dismissing this action pursuant to 28 U.S.C. § 1915A(b) due to plaintiff's failure to state a claim upon which relief may be granted and to comply with the terms of this Decision and Order, without further order of this Court. ORDERED that plaintiff's motion for a preliminary injunction (Dkt. No. 5) is DENIED. ORDERED that plaintiff's motion for the appointment of counsel (Dkt. No. 4) is DENIED. ORDERED that plaintiff's motion to for service (Dkt. No. 10) is DENIED. Signed by Judge Gary L. Sharpe on 12/3/15. ( Notice of Compliance Deadline 1/4/2016, Case Review Deadline 2/4/2016) (served on plaintiff by regular mail) (alh, )
April 4, 2016
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and Tourtelot to the docket as defendants herein. ORDERED that the following claims are DISMISSED pursuant to U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted: (1) First AmendmDECISION AND ORDER: ORDERED that the amended complaint (Dkt. No. 20), and all exhibits annexed thereto is accepted for filing and is deemed the operative pleading. ORDERED that the Clerk of the Court is directed to add Goppert, Digert, Carpenter,ent access to court claims against Ward and Goppert; (2) Eighth Amendment excessive force claims against Wellenstein; (3) Eighth Amendment claims against Digert and Tourtelot; (4) Eighth Amendment conditions of confinement claims; (5) First Amendment freedom of religion claims; (6) claims based upon the destruction or deprivation of property; (7) FOIL claims; (8) retaliation claims related to the package room officer, urine test, cell search, and keeplock confinement; (9) retaliation claims against Digert, Carpenter and Goppert; and (10) supervisory claims against Carpenter and Goppert. ORDERED that Digert, Tourtelot, Goppert and Carpenter are DISMISSED as defendants in this action. ORDERED that the Clerk shall issue summonses for remaining defendants and forward it, along with copies of the amended complaint, to the United States Marshal for service upon the remaining defendants. The Clerk shall forward a copy of the summonses and amended complaint to the Office of the New York Attorney General, together with a copy of this Decision and Order. ORDERED that a response to the complaint be filed by defendants, or their counsel, as provided for in the Federal Rules of Civil Procedure. Signed by Senior Judge Gary L. Sharpe on 4/4/16. (served on plaintiff by regular mail)(alh, )
April 5, 2016
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AMENDED DECISION AND ORDER: ORDERED that the amended complaint (Dkt. No. 20), and all exhibits annexed thereto is accepted for filing and is deemed the operative pleading. ORDERED that the Clerk of the Court is directed to add Goppert, Digert, Carpenter, and Tourtelot to the docket as defendants herein. ORDERED that the following claims are DISMISSED pursuant to U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted: (1) First Amendment access to court claims against Ward and Goppert; (2) Eighth Amendment excessive force claims against Wellenstein; (3) Eighth Amendment claims against Digert and Tourtelot; (4) Eighth Amendment conditions of confinement claims; (5) First Amendment freedom of religion claims; (6) claims based upon the destruction or deprivation of property; (7) FOIL claims; (8) retaliation claims related to the package room officer, urine test, cell search, and keeplock confinement; (9) retaliation claims against Digert, Carpenter and Goppert; and (10) supervisory claims against Carpenter and Goppert. ORDERED that Digert, Tourtelot, Goppert and Carpenter are DISMISSED as defendants in this action. ORDERED that plaintiff is afforded an opportunity to request an order of this Court directing service by the U.S. Marshal and provide payment of the service fee to the U.S. Marshal in full by money order or certified check. ORDERED that, upon plaintiff's request for assistance with service of process, the Clerk shall return the file to the Court for further review. ORDERED that, if plaintiff does not request for assistance with service of process within twenty (20) days of the filing date of this Decision and Order, the Clerk shall issue summonses and forward them to plaintiff, who shall be responsible for effecting service of process on defendants. Upon issuance of the summonses, the Clerk shall send a copy of the summonses and complaint to the Office of the New York Attorney General, together with a copy of this Decision and Order. ORDERED that defendants or their counsel, file a response to the complaint as provided for in the Federal Rules of Civil Procedure after service of process upon them. Notice of Compliance Deadline 4/25/2016. Signed by Senior Judge Gary L. Sharpe on 4/5/16. (served on plaintiff by regular mail)(alh, )
June 7, 2018
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REPORT-RECOMMENDATION AND ORDER: RECOMMENDED, that Defendants' motion for summary judgment (Dkt. No. 64) be GRANTED IN PART: (1) Insofar as it seeks dismissal of Flynn's First Amendment access to the courts claims against Wellenstein and Ward; (2) Insofar as it seeks dismissal of Flynn's retaliation claims against Wellenstein and Ward related to misbehavior reports issued on August 1, 2015, August 17, 2015, August, 24, 2015, November 12, 2015, November 18, 2015, and December 11, 2015; (3) Insofar as it seeks dismissal of Flynn's First Amendment retaliation claims against Wellenstein and Ward for the April 30, 2015 assault; and (4) Insofar as it seeks dismissal of Flynn's First Amendment retaliation claims against Wellenstein and Ward for threats, the motion be GRANTED. RECOMMENDED, that Defendants' Motion for Summary Judgment (Dkt. No. 64) be DENIED IN PART: (1) Insofar as it seeks dismissal of Flynn's First Amendment retaliation claims against Wellenstein and Ward based on access to courts and the misbehavior report issued on April 30, 2015; and (2) Insofar as it seeks dismissal of plaintiff's retaliation claims for access to the courts and the April 30, 2015 misbehavior report due to nonexhaustion, the motion be DENIED. Objections to R&R due by 6/25/2018 Case Review Deadline 6/28/2018. Signed by Magistrate Judge Christian F. Hummel on 6/6/18. (Attachments: # (1) Unpublished Opinions Cited) (served on plaintiff by regular mail)(alh, )
June 28, 2018
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ORDER: ORDERED that the Report-Recommendation and Order (Dkt. No. 66) is ADOPTED in its entirety. ORDERED that defendants' motion for summary judgment (Dkt. No. 64) is GRANTED IN PART as follows: (1) Insofar as it seeks dismissal of Flynn's First Amendment access to the courts claims against Wellenstein and Ward; (2) Insofar as it seeks dismissal of Flynn's retaliation claims against Wellenstein and Ward related to misbehavior reports issued on August 1, 2015, August 17, 2015, August 24, 2015, November 12, 2015, November 18, 2015, and December 11, 2015; (3) Insofar as it seeks dismissal of Flynn's First Amendment retaliation claims against Wellenstein and Ward for the April 30, 2015 assault; (4) Insofar as it seeks dismissal of Flynn's First Amendment retaliation claims against Wellenstein and Ward for threats. ORDERED that defendant's motion for summary judgment (Dkt. No. 64) is DENIED IN PART as follows: (1) Insofar as it seeks dismissal of Flynn's First Amendment retaliation claims against Wellenstein and Ward based on access to courts and the misbehavior report issued on April 30, 2015; and (2) Insofar as it seeks dismissal of plaintiff's retaliation claims for access to the courts and the April 30, 2015 misbehavior report due to non-exhaustion. ORDERED that this case is deemed trial ready and a scheduling order will issue in due course. Signed by Senior Judge Gary L. Sharpe on 6/28/18. {order served via regular mail on plaintiff}(nas, )