McMaster v. LaBarge et al, No. 9:2015cv00578 - Document 99 (N.D.N.Y 2018)

Court Description: DECISION AND ORDER: Based upon a de novo review of the portions of the Report-Recommendation to which plaintiff objected, the 94 Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. § 636(b)(1). Therefore, it is ORDER ED that 1. Defendants' motion for partial summary judgment (Dkt. No. 80 ) is GRANTED in part and DENIED in part; 2. Defendants' motion for summary judgment dismissing plaintiff's excessive force claims against C.O. Smith and C.O. Lamare arising out of the November 16, 2014 incident for non-exhaustion is GRANTED and those claims are DISMISSED; 3. Defendants' motion for summary judgment dismissing plaintiff's excessive force claim against C.O. Smith arising out of the alleged November 15, 2014 incident is GRANTED and that claim is DISMISSED; 4. C.O. Smith is DISMISSED from this action with prejudice; 5. Defendants' motion for summary judgment dismissing plaintiff's First Amendment retaliation c laim against C.O. LaBarge is DENIED; 6. Defendants' motion for summary judgment dismissing plaintiff's excessive force and failure to intervene claims against C.O. Lamare, C.O. LaBarge, C.O. Ellsworth, Lieut. Tatro, Sgt. Tompkins, and Sg t. Rowe for the incidents alleged to have occurred on November 15, 2014 due to non-exhaustion is DENIED without prejudice to defendants' ability to request an exhaustion hearing to assess whether plaintiff exhausted his administrative remedies ; 7. The following claims will proceed: plaintiff's First Amendment retaliation claim against C.O. LaBarge and plaintiff's excessive force and failure to intervene claims against C.O. Lamare, C.O. LaBarge, C.O. Ellsworth, Lieut. Tatro, Sgt. Tompkins, and Sgt. Rowe for the incidents alleged to have occurred on November 15, 2014; 8. Trial on the remaining claims is scheduled for February 5, 2019, in Utica, New York. Signed by Judge David N. Hurd on 9/4/18.(served on plaintiff by regular mail) (alh, )