-ATB Pine et al v. Seeley et al, No. 9:2009cv01198 - Document 92 (N.D.N.Y 2011)
Court Description: DECISION and ORDER re 83 Report and Recommendation. ORDERED that The state defendants' motion (Dkt. No. 22 ) is granted; and plaintiffs' claims as to defendants Robert Cuttita and Deborah Clark are dismissed in their entirety; ORDERED th at The additional county defendants' summary judgment motion (Dkt. No. 79 ) is granted; and plaintiffs' claims as to defendants Richard Hussey and Don Rivenburg are dismissed; ORDERED that The county defendants Peter Bennett, John Jarvis, Ken Liese, Brian McMannis, Gregory Seeley, Donnie Skimmerhorn, Michael Spitz, Mike Sutherland, Edward Vorheese, Ed Warga, and Steven Worth motion to dismiss is granted and dismissed in their entirety; ORDERED that the County defendants' Dr. Hulb iki and Nurse Juliano, motion to dismiss (Dkt. No. 49 ) is granted in part and denied in part: Plaintiffs' motion as to the claim based on deliberate indifference to his serious medical needs by defendant Dr. Hulbiki is denied; Judicial notice is taken with regard to the defendants Donna Juliano, David Snyder, and Al Schnur; the claims against said defendants are dismissed without prejudice since they have never been served, nor has any appearance ever been made on their behalf; ORDERED that the Clerk is directed to return the file to the Magistrate Judge for further scheduling and/or pretrial procedures regarding the remaining claims. Signed by Judge David N. Hurd on 3/8/2011. (served all non-ecf parties by regular mail) (mnc)
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-ATB Pine et al v. Seeley et al Doc. 92 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ABUL LABIB; HAROLD BURROUGHS, JR.; CLEON TAYLOR; BARRY D. IRVIS; and LEE GOERGEN, Plaintiffs, vs 9:09-CV-1198 GREGORY SEELEY, Sheriff; RICHARD HUSSEY, Former Sheriff; STEVEN WORTH, Under Sheriff; MICHAEL SPITZ, Superintendent; KEN LIESE, Sgt.; DON RIVENBURG, Former Sgt.; AARON BEOJEKIAN, Former CO.; EDWARD VORHEESE, Sgt.; ED WARGA, Sgt. and Grievance Coordinator; DR. HULBIKI, Doctor; DONNA JULIANO, Nurse; ROBERT CUTTITA, and DEBORAH CLARK, Correctional Review Specialists; DAVID SNYDER, Former C.O.; JOHN JARVIS, BRIAN McMANNIS, MIKE SUTHERLAND, and DONNIE SKIMMERHORN, All C.O.s; PETER BENNETT, Sgt.; and AL SCHNUR, Former Lt., All of Greene County Jail, Defendants. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ APPEARANCES: OF COUNSEL; ABUL LABIB Plaintiff, Pro Se 08-A-4425 Mt. McGregor Correctional Facility 1000 Mt. McGregor Road Wilton, NY 12831 HAROLD BURROUGHS, JR. Plaintiff, Pro Se 08-A-4423 Clinton Correctional Facility PO Box 2002 Dannemora, NY 12929 Dockets.Justia.com CLEON TAYLOR Plaintiff, Pro Se 09-A-0663 Attica Correctional Facility Box 149 Attica, NY 14011 BARRY D. IRVIS Plaintiff, Pro Se 08-A-4424 Bare Hill Correctional Facility Caller Box 20 Malone, NY 12953 LEE GOERGEN Plaintiff, Pro Se 08-A-2624 Franklin Correctional Facility PO Box 10 Malone, NY 12953 GOLDBERG SEGALLA LLP JONATHAN M. BERNSTEIN, ESQ. Attorneys for Defendants Seeley, Hussey, WILLIAM J. GREAGAN, ESQ. Worth, Spitz, Liese, Rivenburg, Vorheese, Warga, Hulbiki, Jarvis, McMannis, Sutherland, Skimmerhorn and Bennett Suite 300 8 Southwoods Boulevard Albany, NY 12211-2526 HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants Cuttita and Clark Department of Law The Capitol Albany, New York 12224 ADRIENNE J. KERWIN, ESQ. Asst. Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Plaintiffs commenced this civil rights action in October 2009, pursuant to 42 U.S.C. ยง 1983. By Report-Recommendation dated February 4, 2011, the Honorable Andrew T. - 2 - Baxter, United States Magistrate Judge, recommended that the state defendants motion (Dkt. No. 22) be granted and plaintiffs claims as to defendants Robert Cuttita and Deborah Clark be dismissed in their entirety; that the additional county defendants motion (Dkt. No. 79) be granted; that plaintiffs claims as to defendants Peter Bennett, John Jarvis, Ken Liese, Brian McMannis, Gregory Seeley, Donnie Skimmerhorn, Michael Spitz, Mike Sutherland, Edward Vorheese, Ed Warga, and Steven Worth be dismissed in their entirety; and that county defendants motion to dismiss (Dkt. No. 49) be granted in part and denied in part and all plaintiffs claims be dismissed in their entirety as to all defendants except for plaintiffs claim based on deliberate indifference to his serious medical need as to defendants Hulbiki and Juliano. 1. The defendants Seeley, Worth, Spitz, Liese, Vorheese, Warga, Bennett, Jarvis, Skimmerhorn, Sutherland, McMannis and Hulbiki (County defendants) have submitted lengthy objections (Docket No. 84) to the report-recommendation. 2. The county defendants have requested judicial notice with regard to the defendant Juliano (Docket No. 87), and have submitted documentation that said defendant has never been served in this matter, and no appearance has ever been made on her behalf. 3. The plaintiff Harold Burroughs has submitted objections to the recommendation (Docket No. 91) that the claims against Donna Julian be dismissed, and further requests that she now be served since she is no longer on active military duty. Plaintiff Burroughs further urges that this matter not be dismissed as against defendant Hussey. 4. The county defendants have responded to plaintiff Burroughs objections (Docket No. 89), further urging that his objections be denied and the claims against defendant Hussey be dismissed with prejudice. - 3 - Based upon a de novo review of the entire file, including the portions of the ReportRecommendation to which the parties have responded, and the recommendations of Magistrate Judge Baxter, the Report-Recommendation is accepted and adopted with the exception of reference to defendant Donna Juliano. See 28 U.S.C. 636(b)(1). Accordingly, it is ORDERED that 1. The state defendants motion (Dkt. No. 22) is GRANTED; and plaintiffs claims as to defendants Robert Cuttita and Deborah Clark are DISMISSED in their entirety; 2. The additional county defendants summary judgment motion (Dkt. No. 79) is GRANTED; and plaintiffs claims as to defendants Richard Hussey and Don Rivenburg are DISMISSED; 3. The county defendants Peter Bennett, John Jarvis, Ken Liese, Brian McMannis, Gregory Seeley, Donnie Skimmerhorn, Michael Spitz, Mike Sutherland, Edward Vorheese, Ed Warga, and Steven Worth motion to dismiss is GRANTED and DISMISSED in their entirety; 4. County defendants Dr. Hulbiki and Nurse Juliano, motion to dismiss (Dkt. No. 49) is GRANTED IN PART and DENIED IN PART: a. Plaintiffs motion as to the claim based on deliberate indifference to his serious medical needs by defendant Dr. Hulbiki is DENIED; b. Judicial notice is taken with regard to the defendants Donna Juliano, David Snyder, and Al Schnur; the claims against said defendants are DISMISSED WITHOUT prejudice since they have never been served, nor has any appearance ever been made on their behalf; and 5. The Clerk is directed to return the file to the Magistrate Judge for further scheduling and/or pretrial procedures regarding the remaining claims. - 4 - IT IS SO ORDERED. Dated: March 8, 2011 Utica, New York. - 5 -
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