Douglas v. Perrara et al, No. 9:2011cv01353 - Document 81 (N.D.N.Y 2013)

Court Description: DECISION AND ORDER: ORDERED that 80 Report and Recommendation is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion for partial summary judgment (Dkt. No. 70 ) is GRANTED. ORDERED that the following claims are DISMIS SED from this action: (a) all claims asserted against Defendant Russell, and (b) all claims asserted against Defendants in their official capacities only. The Clerk is directed to terminate Defendant Russell from this action. ORDERED that the foll owing claims REMAIN PENDING in this action: (a) Plaintiff'S claim that Defendants Whittier, Mulligan, Perrara and/or Lawrence subjected him to inadequate prison conditions by depriving him of meals for approximately five consecutive days in De cember 2009, in violation of the Eighth Amendment; (b) Plaintiff's claim that Defendants Whittier, Mulligan, Perrara and Lawrence used excessive force against him, and that Defendant Deluca failed to protect him from the use of that excess ive force, in violation of the Eighth Amendment and New York State common law; and (c) Plaintiff's claim that Defendant Deluca was deliberately indifferent to Plaintiff's serious medical needs (following the assaults) in violation of the Eighth Amendment. ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for appointment of counsel for an appeal is granted. ORD ERED that upon assignment of Pro Bono Counsel, a final pretrial conference with counsel will be scheduled in this action before the undersigned, at which time the Court will schedule a jury trial for Plaintiff's remaining claims as set forth abo ve against Defendants Whittier, Mulligan, Perrara, Lawrence and DeLuca. Counsel are directed to appear at the final pretrial conference with settlement authority from the parties. Signed by Judge Glenn T. Suddaby on 9/27/13. {order served via regulaar mail on plaintiff}(nas)