Summary
explaining that cases in the Second Circuit "recognize that intentional, gratuitous uses of force that are not required to subdue an individual likely fail the Graham objective reasonableness test"
Summary of this case from Scalpi v. AmorimOpinion
Civil Action No. 9:11-cv-963 (GLS/CFH)
06-03-2013
DAVID K. PORATH Plaintiff, v. BIRD, Investigator, NYS Police Defendant.
APPEARANCES: FOR THE PLAINTIFF: DAVID K. PORATH 11-A-2120 Plaintiff Pro Se Sing Sing Correctional Facility 354 Hunter Street Ossining, New York 10562 FOR THE DEFENDANT: HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York The Capitol Albany, New York 12224-0341 OF COUNSEL: KEVIN P. HICKEY, ESQ. Assistant Attorney General
APPEARANCES:
FOR THE PLAINTIFF:
DAVID K. PORATH
11-A-2120
Plaintiff Pro Se
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562
FOR THE DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
Attorney General for the
State of New York
The Capitol
Albany, New York 12224-0341 OF COUNSEL: KEVIN P. HICKEY, ESQ.
Assistant Attorney General GARY L. SHARPE, CHIEF JUDGE ORDER
The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge Christian F. Hummel, duly filed May 7, 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
On May 31, 2013, the court received a letter from the plaintiff stating, "At this time, the Plaintiff has no objections at all to the "Report Recommendation and Order," filed on May 7
ORDERED that the Report-Recommendation of Magistrate Judge Christian F. Hummel filed May 7, 2013 is ACCEPTED in its entirety for the reasons state therein; and it is further
ORDERED that Bird's motion for summary judgment (Dkt. No. 46) be DENIED; 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. Dated: June 3, 2013
Albany, New York
/s/_________
Gary L. Sharpe
Chief Judge,
U.S. District Court
th 2013." See Dkt. No. 66.