Kellogg v. New York State Department of Correctional Services et al, No. 1:2007cv02804 - Document 14 (S.D.N.Y. 2009)

Court Description: OPINION AND ORDER: #97749 that Defendants' motion to dismiss is GRANTED in part and DENIED in part. The following motions to dismiss are GRANTED: Defendants' unopposed motion to dismiss Claims 5-8 and 12-15; Defendants' motion to dismi ss claims based on events occurring prior to April 6, 2004; Defendants' motion to dismiss those claims that rely on the "tracker" designation as an independent Constitutional violation; Defendants' motion to dismiss claims of cons piracy; and Defendants' motion to dismiss Plaintiffs claim of deliberate indifference to serious medical needs against Defendant Goldstein The following motions to dismiss are DENIED: Defendants' motion to dismissall claims for failure to e xhaust administrative remedies; Defendants' motion to dismissPlaintiffs claim of deprivation of property without due process; Defendants' motion todismiss Equal Protection claims; and Defendants' motion to dismiss Plaintiffs claim ofde liberate indifference to serious medical needs against Defendant McElroy. The following motions to dismiss are DENIED: Defendants' motion to dismiss all claims for failure to exhaust administrative remedies; Defendants' motion to dismiss Pl aintiffs claim of deprivation of property without due process; Defendants' motion to dismiss Equal Protection claims; and Defendants' motion to dismiss Plaintiffs claim of deliberate indifference to serious medical needs against Defendant M cElroy. As to Defendants' motion to dismiss certain claims for failure to allege personal involvement: Defendants' motion to dismiss claims of sexual harassment under s.1983 against Defendants Ball and Armstrong is DENIED. With respect to all other surviving claims in which Defendants Ball and Armstrong are named, Defendants' motion to dismiss is GRANTED. Defendants' motion to dismiss Plaintiffs claims against Defendant Perez for deprivation of property without due process a nd for deliberate indifference to serious medical needs is GRANTED. Defendants' motion to dismiss the remainder of the surviving claims against Defendant Perez is DENIED. Defendants' motion to dismiss Plaintiffs claim against Defendant Sch neider under s.1983 for a First Amendment violation is DENIED. Defendants' motion to dismiss all other surviving claims against Defendant Schneider is GRANTED. Defendants' motion to dismiss Plaintiffs claim under s.1983 for violation of due process against Defendants Smith and Notaro is DENIED. Defendants' motion to dismiss all other surviving claims against Defendants Smith and Notaro is GRANTED. (Signed by Judge Barbara S. Jones on 7/15/09) (pl) Modified on 7/20/2009 (jab).