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15-1339 - Fann v. Graham et al


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15-1339 - Fann v. Graham et al
March 30, 2016
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s legal property in violation of his First Amendment rights is DISMISSED without prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1). ORDERED, that plaintiff's motions seeking pDECISION AND ORDER: ORDERED, that plaintiff's motion for reconsideration of the December Order (Dkt. No. 9) is GRANTED in part and DENIED in part. ORDERED, that the Clerk shall (i) revise the docket to reflect that C.O. Stienberg is a defendant in this action, (ii) issue an amended summons, and (iii) forward the amended summons to the U.S. Marshal for service of process on defendant C.O. Stienberg. ORDERED, that defendants C.O. Cornell and C.O. Stienberg shall respond to plaintiff's Fourth Amendment claims arising from the visual body cavity searches conducted on June 3 and July 9, 2015, in accordance with the Federal Rules of Civil Procedure. ORDERED, that plaintiff's claim that C.O. Lovejoy confiscated plaintiff'reliminary injunctive relief (Dkt. Nos. 10, 12) are DENIED. Signed by Judge David N. Hurd on 3/30/16. (served on plaintiff by regular mail) (alh, )
May 5, 2016
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DECISION AND ORDER: ORDERED that plaintiff's second motion for reconsideration of the December Order (Dkt. No. 28) is GRANTED. ORDERED, that the Clerk of the Court shall (i) revise the docket to reflect that Supt. Graham is a defendant in this action, and (ii) issue an amended summons and forward it to the U.S. Marshal for service of process on defendant Supt. Graham. ORDERED, that Supt. Graham shall respond to plaintiff's Fourth Amendment unreasonable search claims in accordance with the Federal Rules of Civil Procedure. ORDERED, that plaintiff's Fourth Amendment unreasonable search claims against Supt. of Security Lamanna are DISMISSED without prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1). ORDERED, that defendants' request to stay the pretrial deadlines (Dkt. No. 30) is DENIED. Signed by Judge David N. Hurd on 5/4/16. (served on plaintiff by regular mail) (alh, )
June 29, 2016
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DECISION AND ORDER: ORDERED that Plaintiff's motion seeking preliminary injunctive relief (Dkt. No. 37) is DENIED. Signed by Judge David N. Hurd on 6/29/16. (served on plaintiff by regular mail) (alh, )
July 1, 2016
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AMENDED ORDER TO PRODUCE FOR PHONE CONFERENCE: A Discovery Conference has been set for Tuesday, 7/12/2016 @ 12:00 PM in Albany before Magistrate Judge Christian F. Hummel. Plaintiff will be produced by telephone from the Auburn Correctional Facility. Defense Counsel is/are directed to appear for the conference in person. Signed by Magistrate Judge Christian F. Hummel on 6/30/16. (served on facility and plaintiff via regular mail on 6/30/16 by CRD)(alh, )
August 1, 2016
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DECISION AND ORDER: ORDERED that in accordance with information provided in the acknowledgments of service (Dkt. No. 16 at 5; Dkt. No. 32), the Clerk is directed to revise the docket to indicate that defendant C.O. Shramm's name is spelled "Schramm," and that defendant C.O. Stienberg's name is spelled "Steinberg." ORDERED that plaintiff's motion to amend (Dkt. No. 45) is GRANTED in part and DENIED in part as set forth above. ORDERED that the Clerk is directed to (i) file the proposed amended complaint (Dkt. No. 45-2) as the amended complaint in this action; (ii) revise the docket to add Lt. Ouimetto and Dep. Supt. Fagan (in his official capacity) as defendants in this action; and (iii) issue amended summonses and forward them to the U.S. Marshal for service on defendants Ouimetto and Fagan. ORDERED that a response to the amended complaint shall be filed by the defendants, or their counsel, as provided for in the Federal Rules of Civil Procedure. ORDERED that plaintiff's motion (Dkt. No. 74) for reconsideration of the July Order is GRANTED. ORDERED that plaintiff's request that pro bono counsel be appointed to represent him in this action (see Dkt. No. 61) is DENIED. Signed by Magistrate Judge Christian F. Hummel on 8/1/16. (Attachments: # (1) Unpublished Decisions) (served on plaintiff by regular mail)(alh, )
August 17, 2016
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ORDER: ORDERED that plaintiff's request for the personnel files of defendants Graham, Ederer, Cornell, Lovejoy, Thomas, and Schramm is DENIED, as nothing contained within those files is a proper subject of discovery pursuant to the Federal Rules of Civil Procedure. Signed by Magistrate Judge Christian F. Hummel on 8/16/16. (served on plaintiff by regular mail)(alh, )
October 5, 2016
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ORDER: ORDERED that plaintiff's demand for the personnel file of defendant Steinberg is DENIED, as nothing contained within that file is the proper subject of discovery pursuant to the Federal Rules of Civil Procedure. Signed by Magistrate Judge Christian F. Hummel on 10/5/16. (served on plaintiff by regular mail)(alh, )
November 16, 2016
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DECISION AND ORDER regarding 61 Motion to Compel: ORDERED that Defendants shall provide further responses to plaintiff's request for the production of documents by December 16, 2016. ORDERED, that the Mandatory Pretrial Discovery and Scheduling Order filed on March 14, 2016 (Dkt. No. 23) is hereby amended as follows: a. The deadline for the completion of discovery is hereby extended to January 23, 2017. b. The deadline for the filing of dispositive motions is hereby extended to March 13, 2017. Signed by Magistrate Judge Christian F. Hummel on 11/15/16. (served on plaintiff by regular mail) (alh, )
January 11, 2018
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REPORT-RECOMMENDATION AND ORDER: RECOMMENDED, that plaintiff's Motion for Summary Judgment (Dkt. No. 119) be DENIED. RECOMMENDED, that defendants' Motion for Summary Judgment (Dkt. No. 120) be GRANTED IN PART:(1) Insofar as it seeks dismissal of plaintiff's supervisory liability claims against Deputy Superintendent Fagan. (2) Insofar as it seeks dismissal of plaintiffs supervisory liability claim against Supt. Graham; (3) Insofar as it seeks dismissal of plaintiff's Fourteenth Amendment due process claim against Lieut. Ouimette, (4) Insofar as it seeks dismissal of plaintiffs Fourth Amendment unreasonable search claim against C.O. Cornell and C.O. Steinberg, the motion be GRANTED, and the claims be DISMISSED with prejudice. RECOMMENDED, that defendants Motion for Summary Judgment (Dkt. No. 120) be DENIED IN PART: (1) Insofar as it seeks dismissal of plaintiff's First Amendment retaliation claim against C.O. Thomas, the motion be DENIED,(2) Insofar as it seeks dismissal of plaintiff's First and Fourth Amendment claims against C.O. Cornell, C.O. Lovejoy, C.O. Schramm, and Sgt. Ederer for the incidents occurring on July 9, 2015, the motion be DENIED, without prejudice, to defendants renewing this argument and requesting a hearing to assess whether plaintiff exhausted his administrative remedies. Objections to R&R due by 1/29/2018 Case Review Deadline 2/1/2018. Signed by Magistrate Judge Christian F. Hummel on 1/11/18. (served on plaintiff by regular and certified mail) (Attachments: # (1) Unpublished Opinions Cited)(alh, )
March 19, 2018
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DECISION AND ORDER: The 128 Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). ORDERED that 1. Plaintiff's 119 motion for summary judgment is DENIED in its entirety; 2. Defendants' 120 motion for summary judgment is GRANTED in part and DENIED in part; 3. Plaintiff's supervisory liability claims against defendants Fagan and Graham are DISMISSED with prejudice; 4. Plaintiff's Fourteenth Amendment due process claim against defendant Ouimette is DISMISSED with prejudice; 5. Plaintiff's Fourth Amendment unreasonable search claims against defendants Cornell and Steinberg are DISMISSED with prejudice; 6. Defendants' motion for summary judgment is DENIED as to plaintiff's First Amendment retaliation claim against defendant Thomas; and 7. Defendants' motion for summary judgment is DENIED without prejudice as to plaintiff's First and Fourth Amendment claims against defendants Cornell, Lovejoy, Schramm, and Ederer for the incidents occurring on July 9, 2015, to defendants renewing this argument and requesting a hearing to assess whether plaintiff exhausted his administrative remedies. Signed by Judge David N. Hurd on 3/19/18. (served on plaintiff by regular and certified mail) (alh, )