APPEARANCES: 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 OF COUNSEL: WILLIAM A. SCOTT, ESQ. Ass't Attorney General
APPEARANCES: DEREK A. HEYLIGER
Plaintiff, Pro Se
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562 HON. LETITIA JAMES
Attorney General for the State of New York
Attorney for Defendant
Albany, NY 12224 OF COUNSEL: 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).
Therefore, it is
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) plaintiff'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;
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.
United States District Judge Dated: February 11, 2020
Utica, New York.