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Dolberry v. Jakob

United States District Court, N.D. New York

May 15, 2017

ANDRE DOLBERRY, Plaintiff,
v.
CORRECTION OFFICER JAKOB and SALTSMAN, Defendants.

         APPEARANCES:

          ANDRE DOLBERRY, THORN, GERSHON LAW FIRM HON. ERIC T. SCHNEIDERMAN New York State Attorney General Attorney for Defendants.

         OF COUNSEL:

          KYLE N. KORDICH, ESQ. DENISE P. BUCKLEY, ESQ. MICHAEL G. MCCARTIN, ESQ.

          DECISION AND ORDER

          DAVID N. HURD United States District Judge.

         I. INTRODUCTION

         Plaintiff Andre Dolberry ("Dolberry" or "plaintiff") has filed a pro se motion for preliminary injunctive relief. Dkt. No. 129. Defendants have not responded to plaintiff's motion. For the reasons stated below, plaintiff's motion is denied.

         II. BACKGROUND

         In June 2011, Dolberry commenced this action seeking relief for the alleged violation of his constitutional rights during his incarceration with the New York State Department of Corrections and Community Supervision ("DOCCS").[1] Plaintiff's allegations involved incidents that allegedly occurred from June 2009 through November 2009 at Coxsackie Correctional Facility ("Coxsackie C.F.").

         In an Order filed in November 2011, after review of the complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A, Dolberry's causes of action for the deprivation of procedural due process, denial of equal protection, unlawful retaliation, denial of court access, and cruel and unusual punishment survived sua sponte review and were permitted to proceed against defendants Glenn Saltsman ("Saltsman"), Christopher McDermott ("McDermott"), John Jakob ("Jakob"), Eric Gutwein ("Gutwein"), Correction Officer Silvernail ("Silvernail"), and Superintendent Martuscello ("Martuscello"). Dkt. No. 5; Dkt. No. 54 at 10. Thereafter, defendants filed an answer to the complaint. Dkt. No. 17.

         In March 2013, Dolberry filed a motion for summary judgment and, in May 2013, defendants cross-moved for summary judgment. Dkt. Nos. 37, 45.

         In October 2013, Dolberry filed a notice indicating that he was incarcerated at Albany County Correctional Facility ("Albany County C.F."). Dkt. No. 50.

         In March 2014, Dolberry was transferred to Downstate Correctional Facility ("Downstate C.F."). Docket Report (March 24, 2014).

         In a Decision and Order filed March 28, 2014, the Court adopted a Report and Recommendation issued on February 28, 2014 (Dkt. No. 54) denying Dolberry's motion for summary judgment and dismissing plaintiff's complaint based upon his material misrepresentations to the Court, made under oath, that he had not commenced any prior actions related to his imprisonment. Dkt. No. 56. At that time, the Court also denied defendants' cross-motion as moot. Id.

         In April 2014, Dolberry filed an appeal with the United States Court of Appeals for the Second Circuit ("Second Circuit"). Dkt. No. 58.

         In May 2014, Dolberry was transferred to Coxsackie C.F. and then to Clinton Correctional Facility ("Clinton ...


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