Trapani v. Cuomo et al, No. 9:2014cv00683 - Document 45 (N.D.N.Y 2016)

Court Description: DECISION AND ORDER: ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 44 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion to dismiss Plaintiff's Complaint for failure to comply with a Court Order pursuant to Fed. R. Civ. P. 41(b) (Dkt. No. 38 ) is DENIED. ORDERED that Defendants' motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 38 ) is GRANTED in part and DENIED in part in the following respects: (1) Plaintiff's Eighth Amendment excessive force claims against Defendants Steinberg, Vantassell and Elser arising from the incident on February 8, 20 11, are DISMISSED, and those individuals are TERMINATED as Defendants in this action; but (2) Plaintiff's three remaining claims (i.e., Plaintiff's Eighth Amendment excessive force claims against Defendants Wright, Clark, Novak, Reilly and Wiwsianyk arising from the incident of April 4, 2011, his First Amendment retaliation claim against Defendant Coryer, and his and Fourteenth Amendment due process claim against Defendant Iqbal) SURVIVE Defendants' motion to dismiss. Signed by Chief Judge Glenn T. Suddaby on 7/15/16. {order served via regular mail on plaintiff}(nas)

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Trapani v. Cuomo et al Doc. 45 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ DAMIAN TRAPANI, Plaintiff, v. 9:14-CV-0683 (GTS/CFH) M. CORYER, Nurse Admin., Auburn Corr. Facility; NICHOLAS WIWSIANYK, Corr. Officer, Auburn Corr. Facility; SEAN REILLY, Corr. Officer, Auburn Corr. Facility; GARY STEINBERG, Corr. Officer, Auburn Corr. Facility; BRYAN VANTASSELL, Corr. Officer, Auburn Corr. Facility; JAMES ELSER, Corr. Officer, Auburn Corr. Facility; J. WRIGHT, Sergeant, Auburn Corr. Facility; T. CLARK, Corr. Officer, Auburn Corr. Facility; C. NOVAK, Corr. Officer, Auburn Corr. Facility; JOHN DOE #7, Lieutenant, Auburn Corr. Facility; JOHN DOE #10, Captain, Auburn Corr. Facility; and MOHAMMAD MASUD IQBAL, Psychiatrist, Auburn Corr. Facility, Defendants. ____________________________________________ APPEARANCES: OF COUNSEL: DAMIAN TRAPANI, No. 32911 Plaintiff, Pro Se Schenectady County Jail 320 Veeder Avenue Schenectady, New York 12307 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 NICOLE E. HAIMSON, ESQ. Assistant Attorney General GLENN T. SUDDABY, Chief United States District Judge Dockets.Justia.com DECISION and ORDER Currently before the Court, in this pro se prisoner civil rights action filed by Damian Trapani (“Plaintiff”) against the twelve above-captioned employees of the New York State Department of Corrections and Community Supervision (“Defendants”), are Defendants’ motion to dismiss Plaintiff’s Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) and for failure to comply with a Court Order pursuant to Fed. R. Civ. P. 41(b), and United States Magistrate Judge Christian F. Hummel’s ReportRecommendation recommending that Defendants’ motion be granted in part and denied in part. (Dkt. Nos. 38, 44.) None of the parties have filed an Objection to the Report-Recommendation, and the deadline in which to do so has expired. (See generally Docket Sheet.) After carefully reviewing the relevant papers herein, including Magistrate Judge Hummel’s ReportRecommendation, the Court can find no clear-error in that thorough Report-Recommendation.1 Magistrate Judge Hummel has employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein.2 1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). 2 The Court notes that it agrees that Plaintiff filed his excessive force claim against Defendants Steinberg, Vantassell and Elser eleven days late for slightly different reasons than those offered by Magistrate Judge Hummel. Specifically, by the Court’s count, 103 days (not 101 days) elapsed between February 18, 2011, and June 1, 2011, meaning that the statute of limitations appears to have expired on May 22, 2014 (not May 20, 2014). However, while Plaintiff’s Complaint appears to be dated June 1, 2014, his Civil Cover Sheet is clearly dated June 2, 2014, indicating that he initially submitted his package for mailing on Monday, June 2, 2014 (not on Sunday, June 1, 2014). (Dkt. No. 1, Attach. 2.) Even if the Court’s calculations 2 ACCORDINGLY, it is ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 44) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion to dismiss Plaintiff’s Complaint for failure to comply with a Court Order pursuant to Fed. R. Civ. P. 41(b) (Dkt. No. 38) is DENIED; and it is further ORDERED that Defendants’ motion to dismiss Plaintiff’s Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 38) is GRANTED in part and DENIED in part in the following respects: (1) Plaintiff’s Eighth Amendment excessive force claims against Defendants Steinberg, Vantassell and Elser arising from the incident on February 8, 2011, are DISMISSED, and those individuals are TERMINATED as Defendants in this action; but (2) Plaintiff’s three remaining claims (i.e., Plaintiff’s Eighth Amendment excessive force claims against Defendants Wright, Clark, Novak, Reilly and Wiwsianyk arising from the incident of April 4, 2011, his First Amendment retaliation claim against Defendant Coryer, and his and Fourteenth Amendment due process claim against Defendant Iqbal) SURVIVE Defendants’ motion to dismiss. Dated: July 15, 2016 Syracuse, New York ____________________________________ HON. GLENN T. SUDDABY Chief United States District Judge are in error, however, eleven days elapsed between the expiration of the limitations period and the filing of Plaintiff’s referenced excessive force claim, according to Magistrate Judge Hummel’s calculations. 3

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