Peele v. Annucci et al, No. 9:2015cv00317 - Document 53 (N.D.N.Y 2016)

Court Description: DECISION AND ORDER: ORDERED, that Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 49 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion for partial summary judgment (Dkt. No. 35 ) is GRANTED as to Plaint iff's claims against Defendant Fletcher, and that Defendant is DISMISSED from this action. ORDERED that Defendants' motion for partial summary judgment (Dkt. No. 35 ) is DENIED as to Plaintiff's claims against Defendants Gordon, Rodi er and Samolis. 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. ORDERE D that upon assignment of Pro Bono Counsel, a pretrial conference with counsel will be scheduled in this action, at which time the Court will schedule a jury trial for Plaintiff's 8th Amendment excessive force claims against Defendants Donah, Sm ith, Gordon and Rodier, and Plaintiff's 8th Amendment failure to intervene and failure to properly train/supervise staff against Defendant Samolis. Counsel are directed to appear at the pretrial conference with settlement authority from the parties. Signed by Chief Judge Glenn T. Suddaby on 8/17/16. (served on plaintiff by regular mail) (alh, )

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Peele v. Annucci et al Doc. 53 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ KENNEY PEELE, Plaintiff, 9:15-CV-0317 (GTS/TWD) v. ROBERT M. DONAH, Corr. Officer, Clinton Corr. Facility; CURTIS E. SMITH, Corr. Officer, Clinton Corr. Facility; PAUL L. FLETCHER, Corr. Officer, Clinton Corr. Facility; K. GORDON, Corr. Officer, Clinton Corr. Facility; C. RODIER, Corr. Officer, Clinton Corr. Facility; and VINCENT SAMOLIS, Sergeant, Clinton Corr. Facility, Defendants. _____________________________________________ APPEARANCES: OF COUNSEL: KENNEY PEELE, 07-B-3122 Plaintiff, Pro Se Sing Sing Correctional Facility 354 Hunter Street Ossining, NY 10562 HON. ERIC T. SCHNEIDERMAN New York State Attorney General Counsel for Defendants The Capitol Albany, NY 12224 TIMOTHY P. MULVEY, ESQ. Assistant Attorney General GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in this pro se prisoner civil rights action filed by Kenney Peele (“Plaintiff”) against the above-captioned employees of the New York State Department of Corrections and Community Supervision (“Defendants”) at Clinton Correctional Facility in Dannemora, New York, are Defendants’ motion for partial summary judgment and United States Dockets.Justia.com Magistrate Judge Thérèse Wiley Dancks’ Report-Recommendation recommending that Defendants’ motion be granted in part and denied in part. (Dkt. Nos. 35, 49.) None of the parties have filed objections 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 Dancks’ thorough Report-Recommendation, the Court can find no clear-error in the ReportRecommendation.1 Magistrate Judge Dancks 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, and Defendants’ motion is granted as to Defendant Fletcher and denied as to Defendants Gordon, Rodier, and Samolis ACCORDINGLY, it is ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 49) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion for partial summary judgment (Dkt. No. 35) is GRANTED as to Plaintiff’s claims against Defendant Fletcher, and that Defendant is DISMISSED from this action; and it is further ORDERED that Defendants’ motion for partial summary judgment (Dkt. No. 35) is DENIED as to Plaintiff’s claims against Defendants Gordon, Rodier and Samolis; and it is further 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 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; and it is further ORDERED that upon assignment of Pro Bono Counsel, a pretrial conference with counsel will be scheduled in this action, at which time the Court will schedule a jury trial for Plaintiff's 8th Amendment excessive force claims against Defendants Donah, Smith, Gordon and Rodier, and Plaintiff’s 8th Amendment failure to intervene and failure to properly train/supervise staff against Defendant Samolis. Counsel are directed to appear at the pretrial conference with settlement authority from the parties. Dated: August 17, 2016 Syracuse, New York ____________________________________ HON. GLENN T. SUDDABY Chief United States District Judge 3

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