Phelan v. Quinn et al, No. 9:2011cv00314 - Document 34 (N.D.N.Y 2012)

Court Description: DECISION and ORDER: The 33 Report and Recommendation is accepted in whole. ORDERED that 29 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part; Plaintiff's claims for damages against the individual defenda nts in both their individual and official capacities under the Americans with Disabilities Act are DISMISSED; Plaintiff's claims for injunctive relief against the individual defendants in their official capacities REMAIN; Plaintiff's re maining claims as to defendants Quinn, Minal, Torres, and Washer are DISMISSED without prejudice to allow amendment as directed in this Order. Plaintiff's claim against Nurse Ted is DISMISSED; and Plaintiff is granted until July 20, 2012, t o file a second amended complaint to assert causes of action for (a) the use of excessive force in violation of his Eighth Amendment right to be free from cruel and unusual punishment, (b) retaliation for filing complaints and grievances in violation of his First Amendment right to seek the redress of grievances, and (c) failing to protect Phelan from harm posed by other inmates in violationof his Eighth Amendment right to be free from cruel and unusual punishment. Signed by Judge David N. Hurd on 6/19/12. {order served via regular mail on all non-ecf parties}(nas, )