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Colaruotolo v. County of Schenectady

United States District Court, Second Circuit

May 24, 2013

KYLE DAVID COLARUOTOLO, Plaintiff,
v.
COUNTY OF SCHENECTADY, NEW YORK; SGT. BARRON;[1] OFFICER HOWIE;[2] OFFICER SCHMIDT; OFFICER GIMMETTE; OFFICER MARTIN; OFFICER BUTTINGTIN;[3] OFFICER COONRAD;[4] OFFICER HALL;[5] JOHN DOE #8; SGT. LABRAKE; JANE DOE #1; and JOHN DOE #9, Defendants.

KYLE DAVID COLARUOTOLO, Albany, New York, Plaintiff, Pro Se.

PHILLIPS, LYTLE LAW FIRM, MARC H. GOLDBERG, ESQ., Albany, New York, Attorney for Served Defendants.

REPORT-RECOMMENDATION AND ORDER

RANDOLPH F. TREECE, Magistrate Judge.

ORDER

The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge Randolph F. Treece, duly filed May 24, 2013. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.

No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby

ORDERED that the Report-Recommendation of Magistrate Judge Randolph F. Treece filed May 24, 2013 is ACCEPTED in its entirety for the reasons state therein; and it is further

ORDERED, that John Doe #8, John Doe #9, and Jane Doe #1 be DISMISSED from this action due to Plaintiff's failure to timely identify and serve them in accordance with Federal Rule of Civil Procedure 4(m); and it is further

ORDERED, that Defendant's unopposed Motion for Summary Judgment (Dkt. No. 29) be GRANTED and this entire case be DISMISSED, and it is further

ORDERED, that the Clerk of the Court is to mail copies of the Order to the parties in accordance with the court's local rules.

IT IS SO ORDERED.

I. BACKGROUND

Pro se Plaintiff Kyle David Colaruotolo commenced this action on June 27, 2011, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights during his incarceration at the Schenectady County Jail from April 2009 through March 2010. Dkt. No. 1, Compl. At the time Plaintiff commenced this action, he was no longer incarcerated. See id. & Dkt. No. 2.

On November 22, 2011, the Honorable Gary L. Sharpe, Chief United States District Judge, performed an initial screening review of Plaintiff's Complaint, pursuant to 28 U.S.C. §§ 1915(e) and 1915A, and dismissed several claims and Defendants.[6] Dkt. No. 6. What survived this review were vague allegations, which were construed very broadly and interpreted as raising the following claims: (1) Eighth Amendment violation for Defendants' failure to protect Plaintiff from the sexual assault perpetrated upon him by another inmate, William Banks, on December 30, 2009; (2) Equal Protection violation for subjecting Plaintiff to intimidation and harassment and for failing to maintain a safe environment for him all on account of his sexual orientation; and (3) ...


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