THIGPEN v. COUNTY OF ERIE, 11-CV-466A. (2014)
Court: District Court, W.D. New York
Number: infdco20140430713
Visitors: 25
Filed: Feb. 27, 2014
Latest Update: Feb. 27, 2014
Summary: ORDER RICHARD J. ARCARA, District Judge. The above-referenced case was referred to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. 636(b)(1) for pretrial proceedings. Magistrate Judge Scott issued a Report and Recommendation, Dkt. No. 43, in which he recommended that summary judgment be granted in defendants' favor pursuant to Fed. R. Civ. P. 56 on the ground that injuries suffered by plaintiff were not severe enough to be of Constitutional dimension. The Court has carefully reviewed t
Summary: ORDER RICHARD J. ARCARA, District Judge. The above-referenced case was referred to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. 636(b)(1) for pretrial proceedings. Magistrate Judge Scott issued a Report and Recommendation, Dkt. No. 43, in which he recommended that summary judgment be granted in defendants' favor pursuant to Fed. R. Civ. P. 56 on the ground that injuries suffered by plaintiff were not severe enough to be of Constitutional dimension. The Court has carefully reviewed th..
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ORDER
RICHARD J. ARCARA, District Judge.
The above-referenced case was referred to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. § 636(b)(1) for pretrial proceedings. Magistrate Judge Scott issued a Report and Recommendation, Dkt. No. 43, in which he recommended that summary judgment be granted in defendants' favor pursuant to Fed. R. Civ. P. 56 on the ground that injuries suffered by plaintiff were not severe enough to be of Constitutional dimension.
The Court has carefully reviewed the Report and Recommendation, the objections, responses and all the relevant pleadings, and upon de novo review it is hereby
ORDERED, pursuant to 28 U.S.C. § 636(b)(1), the Report and Recommendation, Dkt. No. 43, is not adopted. Because material questions of fact remain whether force was applied maliciously to plaintiff to cause harms, see e.g., Vazquez v. Curcione, 11-CV-443 (HBS) 2013 WL 5408858 *4 (W.D.N.Y. Sept. 25, 2013) (citing Wright v. Goord, 554 F.3d. 255, 268-69 (2d Cir. 2009)), whether plaintiff's alleged injuries were de minimus is therefore not amendable to summary judgment pursuant to Fed. R. Civ. P. 56. The action is recommitted to Magistrate Judge Scott pursuant to the terms of the Court's prior referral.
IT IS SO ORDERED.
Source: Leagle
