Trapani v. Coryer, 9:14-CV-0683 (GTS/CFH). (2016)
Court: District Court, N.D. New York
Number: infdco20160718c36
Visitors: 12
Filed: Jul. 15, 2016
Latest Update: Jul. 15, 2016
Summary: DECISION and ORDER GLENN T. SUDDABY , Chief District Judge . 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
Summary: DECISION and ORDER GLENN T. SUDDABY , Chief District Judge . 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..
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DECISION and ORDER
GLENN T. SUDDABY, Chief District Judge.
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 Report-Recommendation 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 Report-Recommendation, 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
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.
FootNotes
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 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.
Source: Leagle
