Phelan
v.
Durniak

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORKSep 24, 2014
9:10-CV-666 (FJS/RFT) (N.D.N.Y. Sep. 24, 2014)

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Summaries written by judges

Summaries

  • holding that allegations of isolated verbal sexual harassment, without physical harm or contact, failed to state a claim

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9:10-CV-666 (FJS/RFT)

09-24-2014

KENNETH J. PHELAN, Plaintiff, v. M. DURNIAK, Correctional Officer, Auburn Correctional Facility; WISE, Sergeant, Auburn Correctional Facility; H. GRAHAM, Superintendent, Auburn Correctional Facility; HAGGETT, Warden, Mt. McGregor Correctional Facility; BRIAN FISCHER, Commissioner, NYS DOCS; and AUBIN, Correction Officer, Auburn Correctional Facility, Defendants.

APPEARANCES KENNETH J. PHELAN 09-A-1183 Marcy Correctional Facility P.O. Box 3600 Marcy, New York 13403 Plaintiff pro se OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL The Capitol Albany, New York 12224 Attorneys for Defendants OF COUNSEL C. HARRIS DAGUE, AAG


APPEARANCES

KENNETH J. PHELAN
09-A-1183

Marcy Correctional Facility
P.O. Box 3600
Marcy, New York 13403
Plaintiff pro se
OFFICE OF THE NEW YORK

STATE ATTORNEY GENERAL

The Capitol
Albany, New York 12224
Attorneys for Defendants


OF COUNSEL

C. HARRIS DAGUE, AAG

SCULLIN, Senior Judge

ORDER

Plaintiff brought this action pursuant to 42 U.S.C. § 1983, alleging that Defendants (1) sexually and verbally harassed him because he is an Irish-American with red hair; (2) violated his due process rights by placing him on shower restriction without notice or a hearing; (3) kept him confined in constitutionally insufficient conditions; and (4) retaliated against him for declining sexual advances and filing grievances. See generally Dkt. No. 16, Amended Complaint. Defendants filed a motion for summary judgment, see Dkt. No. 58, which Plaintiff opposed, see Dkt. No. 65. On September 25, 2013, Magistrate Judge Treece issued a well-reasoned and comprehensive Report-Recommendation and Order, in which he recommended that this Court grant Defendants' motion and dismiss this action in its entirety. See generally Dkt. No. 70. Plaintiff filed objections to these recommendations. See generally Dkt. No. 74.

When a party makes specific objections to portions of a magistrate judge's report and recommendation, the court conducts a de novo review of those recommendations. See Trombley v. Oneill, No. 8:11-CV-0569, 2011 WL 5881781, *2 (N.D.N.Y. Nov. 23, 2011) (citing Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C)). Where a party makes only conclusory or general objections, however, the court reviews the report and recommendation for "clear error" only. See Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 1794741, *1 (N.D.N.Y. June 23, 2009) (quotation omitted). After conducting the appropriate review, a district court may decide to accept, reject or modify those recommendations. See Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. Sept. 29, 2009) (quoting 28 U.S.C. § 636(b)(1)(C)).

In light of Plaintiff's filing of objections, as well as his pro se status, the Court has conducted a de novo review of Magistrate Judge Treece's Report-Recommendation and Order. Having completed that review, the Court hereby

ORDERS that Magistrate Judge Treece's September 25, 2013 Report-Recommendation and Order is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Defendants' motion for summary judgment is GRANTED and this action is DISMISSED in its entirety; and the Court further

ORDERS that Plaintiff's motion for appointment of counsel, see Dkt. No. 76, which the Court received for filing on September 3, 2014, is DENIED as moot; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: September 24, 2014


Syracuse, New York


/s/
_________


Frederick J. Scullm, Jr.


Senior United States District Court Judge