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Hayes v. Dahkle

United States District Court, N.D. New York

January 19, 2018

TAHEEN HAYES, Plaintiff,
v.
T. DAHKLE, et al., Defendants.

          DECISION & ORDER

          THOMAS J. McAVOY, Senior United States District Judge

         I. INTRODUCTION

         This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Christian F. Hummel, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).

         In his October 27, 2017 Report-Recommendation and Order [Dkt. No. 33], Magistrate Judge Hummel recommends that defendants' partial motion to dismiss [Dkt. No. 26] be granted “[i]nsofar as it seeks dismissal of plaintiff's claims against C.O. Dahkle, C.O.

         Hoffman, and C.O. Meier for verbal harassment and/or threats, ” and that these claims be dismissed with prejudice. Dkt. No. 33, p. 36. Magistrate Judge Hummel also recommends that defendants' partial motion be denied:

(1) Insofar as it seeks dismissal of plaintiff's Eighth Amendment claim against C.O. Dahkle for sexual assault,
(2) Insofar as it seeks dismissal of plaintiff's claims against Supt. Martuscello for verbal harassment and/or threats,
(3) Insofar as it seeks dismissal of plaintiff's First Amendment claims against C.O. Meier and C.O. Hoffman for retaliation,
(4) Insofar as it seeks dismissal of plaintiff's supervisory liability claims against Supt. Martuscello for C.O. Dahkle's verbal harassment and/or threats, [and]
(5)[1] Insofar as it seeks dismissal of plaintiff's supervisory liability claims against Supt. Martuscello and DSS Shanley for C.O. Meier's retaliation.

Id., pp. 36-37.

         Defendants object to that portion of the Report-Recommendation and Order denying their motion “insofar as it seeks dismissal of plaintiff's supervisory liability claims against Supt. Martuscello for C.O. Dahkle's verbal harassment and/or threats.” Obj., Dkt. No.36)(quoting Dkt. No. 33, at p. 36).

         II. STANDARD OF REVIEW

         When objections to a magistrate judge's report and recommendation are lodged, the district court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The Court must make a de novo determination to the extent that a party makes specific objections to a magistrate judge's findings.). After reviewing the report and recommendation, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations ...


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