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16-1368 - Hayes v. Dahkle et al


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16-1368 - Hayes v. Dahkle et al
January 27, 2017
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DECISION AND ORDER: ORDERED, that the amended complaint (Dkt. No. 8), and all exhibits annexed (Dkt. Nos.1-1 and 8-1) thereto is accepted for filing and is deemed the operative pleading. ORDERED that the Clerk of the Court is directed to create a new docket entry for the amended complaint. ORDERED that the Clerk of the Court shall amend the docket to include Dahkle, Martuscello, Shanley and Iarrusso 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) plaintiff's retaliation claim against Dahkle related to the alleged sexual assault in April 2016; and (2) plaintiff's claim that Iarrusso violated his constitutional rights when he failed to follow DOCCS Directives. ORDERED, that the following claims survive this Court's initial review and require a response: (1) Eighth Amendment claims against Dahkle related to the April 15, 2016 incident; (2) Eighth Amendment excessive force claims against Meier, Bence, Coon, and Langtry; (3) First Amendment retaliation claims against Dahkle, Hoffman, Meier, Bence, Coon, Langtry, Iarrusso, and Martuscello; and (4) supervisory claims against Martuscello and Shanley. ORDERED, that a response to the amended complaint be filed by defendants Hoffman, Meier, Bence, and Coon or their counsel, as provided for in the Federal Rules of Civil Procedure. ORDERED, that the Clerk shall issue summonses for remaining defendants, Dahkle, Iarrusso, Martuscello, Langtry, and Shanley and forward them, along with copies of the amended complaint, to the United States Marshal for service upon the 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. Signed by Senior Judge Thomas J. McAvoy on 1/26/17. (served on plaintiff by regular mail)(alh, )
October 30, 2017
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REPORT-RECOMMENDATION AND ORDER: RECOMMENDED, that defendants' partial Motion to Dismiss (Dkt. No. 26) be GRANTED IN PART Insofar as it seeks dismissal of plaintiffs claims against C.O. Dahkle, C.O. Hoffman, and C.O. Meier for verbal harassment and/or threats, the motion be GRANTED, and the claims be DISMISSED with prejudice. RECOMMENDED, that defendants' partial Motion to Dismiss (Dkt. No. 26) be DENIED IN PART as described herein. Objections to R&R due by 11/16/2017 Case Review Deadline 11/20/2017. Signed by Magistrate Judge Christian F. Hummel on 10/27/17. (Attachments: # (1) Unpublished Decision Cited)(alh, )
January 19, 2018
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DECISION & ORDER: The Court ACCEPTS AND ADOPTS Magistrate Judge Hummel's October 27, 2017 33 Report-Recommendation and Order IN PART, and MODIFIES IT IN PART in accordance with this decision. Accordingly, defendants' partial motion to dismiss (Dkt. No. 26) is GRANTED: (1) insofar as it seeks dismissal of plaintiff's claims against C.O. Dahkle, C.O. Hoffman, and C.O. Meier for verbal harassment and/or threats, (2) insofar as it seeks dismissal of plaintiff's supervisory liability claims against Supt. Martuscello for C.O. Dahkle's verbal harassment and/or threats. and (3) insofar as it seeks dismissal of plaintiff's First Amendment retaliation claims against C.O. Langtry, C.O. Bence, and C.O. Coon. These claims are DISMISSED WITH PREJUDICE. Further, Defendants' partial motion to dismiss (Dkt. No. 26) is DENIED: (1) Insofar as it seeks dismissal of plaintiff's Eighth Amendment claim against C.O. Dahkle for sexual assault, (2) Insofar as it seeks dismissal of plaintiff's claims against Supt. Martuscello for verbal harassment and/or threats, (3) Insofar as it seeks dismissal of plaintiff's First Amendment claims against C.O. Meier and C.O. Hoffman for retaliation, and (4) Insofar as it seeks dismissal of plaintiff's supervisory liability claims against Supt. Martuscello and DSS Shanley for C.O. Meier's retaliation. Signed by Senior Judge Thomas J. McAvoy on 1/19/18. (served on plaintiff by regular mail)(alh, )