Heyliger v. Cymbrak et al, No. 9:2017cv00912 - Document 84 (N.D.N.Y 2020)
Court Description: DECISION AND ORDER: ORDERED that the 83 Report and Recommendation is accepted in whole. ORDERED that 72 Defendants' motion for partial summary judgment is GRANTED. ORDERED that Plaintiff's Eighth Amendment conditions of confine ment claim against defendant Lafountain regarding his food is DISMISSED. ORDERED that 78 Plaintiff's cross-motion for partial summary judgment is DENIED. ORDERED that pursuant to plaintiff's stipulations, the following claims are DISMIS SED with prejudice: (1) plaintiff's First Amendment retaliation claims against defendants Cymbrak, Guynup, Lafountain, Lagree, Mahoney, Mussen, Perry, and Wilcox insofar as those claims are based on the alleged October 28, 2015 assault; (2) all claims against defendants Annucci, Bellamy, Effman, Loren, Simpson, and Leahy Scott; and (3) plaintiff's excessive force claims against defendants Mahoney and Lafountain. ORDERED that the action is terminated as to defendants Annucci, Bellamy, Effman, Loren, Simpson, and Leahy Scott. The following claims remain for trial: (1) plaintiff's Eighth Amendment excessive force claims against defendants Cymbrak, Guynup, Lagree, Mussen, Wilcox, and Perry based on an alleged October 28, 20 15 use of force; (2) plaintiff's racial discrimination claim against defendant Lagree relating to the October 28, 2015 incident; and (3) plaintiff's First Amendment retaliation claim against defendant Lafountain alleging food tampering, des truction of property, and falsification of property transfer documents. Trial is tentatively scheduled for July 20, 2020 at 9:30 a.m. in Utica, New York. Pre-trial submissions are due on or before July 6, 2020. The parties are directed to adv ise the Court on or before April 1, 2020 whether or not a consent to a jury trial before Magistrate Judge Hummel pursuant to 28 U.S.C. § 636(c) will be executed based on his familiarity with the case. ORDERED that Plaintiff's prior motion for the appointment of counsel is considered renewed and the Clerk is directed to appoint plaintiff pro bono trial counsel. Signed by Judge David N. Hurd on 2/11/2020. {order served via regular mail on plaintiff}(nas)
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Heyliger v. Cymbrak et al Doc. 84 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------DEREK A. HEYLIGER, Plaintiff, -v- 9:17-CV-912 (DNH/CFH) ANDREW CYMBRAK, in his individual capacity as Correctional Officer, Clinton Correctional Facility, formerly known as A. Cymbrak; CHRISTOPHER LAGREE, in his individual capacity as Correctional Officer, Clinton Correctional Facility, formerly known as C. Lagree; KYLE GUYNUP, in his individual capacity as Correctional Officer, Clinton Correctional Facility, formerly known as Kile Guynup; A. MUSSEN, in his individual capacity as Correctional Officer, Clinton Correctional Facility; KEVIN WILCOX, in his individual capacity as Correctional Officer, Clinton Correctional Facility, formerly known as K. Wilcox; LIAM MAHONEY, in his individual capacity as Correctional Officer, Clinton Correctional Facility, formerly known as L. Maloney; WILLIAM PERRY, in his individual capacity as Correctional Officer, Clinton Correctional Facility; LAFOUNTAIN, in his individual capacity as Correctional Officer, Clinton Correctional Facility; ANTHONY ANNUCCI, in his individual capacity as DOCCS CORC Acting Commissioner of Corrections; KAREN BELLAMY, in her individual capacity as DOCCS CORC Director Inmate Grievance Program; CATHERINE LEAHY SCOTT, in her individual capacity as New York State Inspector General; CHARLES SIMPSON, in his individual capacity as DOCCS CORC Inmate Grievance Coordinator; JASON EFFMAN, in his individual capacity as DOCCS CORC Inmate Grievance Program Coordinator; and REBECCA LOREN, in her individual capacity as DOCCS CORC Inmate Grievance Program Coordinator, Dockets.Justia.com Defendants. -------------------------------APPEARANCES: OF COUNSEL: DEREK A. HEYLIGER Plaintiff, Pro Se 12-B-0269 Sing Sing Correctional Facility 354 Hunter Street Ossining, NY 10562 HON. LETITIA JAMES Attorney General for the State of New York Attorney for Defendant The Capitol Albany, NY 12224 WILLIAM A. SCOTT, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff Derek A. Heyliger brought this civil rights action pursuant to 42 U.S.C. § 1983. On December 16, 2019, the Honorable Christian F. Hummel, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion for partial summary judgment be granted and that plaintiff's cross-motion for partial summary judgment be denied. Magistrate Judge Hummel further recommended that, pursuant to plaintiff's stipulation, several claims also be dismissed. No objections to the Report-Recommendation have been filed. Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). -2- Therefore, it is ORDERED that 1. Defendants' motion for partial summary judgment is GRANTED; 2. Plaintiff's Eighth Amendment conditions of confinement claim against defendant Lafountain regarding his food is DISMISSED; 3. Plaintiff's cross-motion for partial summary judgment is DENIED; 4. Pursuant to plaintiff's stipulations, the following claims are DISMISSED with prejudice: (1) plaintiff's First Amendment retaliation claims against defendants Cymbrak, Guynup, Lafountain, Lagree, Mahoney, Mussen, Perry, and Wilcox insofar as those claims are based on the alleged October 28, 2015 assault; (2) all claims against defendants Annucci, Bellamy, Effman, Loren, Simpson, and Leahy Scott; and (3) plaintiff's excessive force claims against defendants Mahoney and Lafountain; 5. The action is terminated as to defendants Annucci, Bellamy, Effman, Loren, Simpson, and Leahy Scott; 6. The following claims remain for trial: (1) plaintiff's Eighth Amendment excessive force claims against defendants Cymbrak, Guynup, Lagree, Mussen, Wilcox, and Perry based on an alleged October 28, 2015 use of force; (2) plaintiff's racial discrimination claim against defendant Lagree relating to the October 28, 2015 incident; and (3) plaintif f's First Amendment retaliation claim against defendant Lafountain alleging food tampering, destruction of property, and falsification of property transfer documents; and 7. Trial is tentatively scheduled for July 20, 2020 at 9:30 a.m. in Utica, New York. Pre-trial submissions are due on or before July 6, 2020; -3- 8. The parties are directed to advise the Court on or before April 1, 2020 whether or not a consent to a jury trial before Magistrate Judge Hummel pursuant to 28 U.S.C. § 636(c) will be executed based on his familiarity with the case; and 9. Plaintiff's prior motion for the appointment of counsel is considered renewed and the Clerk is directed to appoint plaintiff pro bono trial counsel. IT IS SO ORDERED. Dated: February 11, 2020 Utica, New York. -4-
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