UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

TERRY DAUM,

Plaintiff,

-v- 9:15-CV-1083

CAPTAIN DEVLIN, SERGEANT CROSS, and CORRECTIONS OFFICER STICKNEY,

Defendants.

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APPEARANCES: OF COUNSEL:

TERRY DAUM Plaintiff, Pro Se 97-A-1295 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541

HON. LETITIA JAMES THOMAS A. CULLEN, ESQ. New York State Attorney General Ass’t Attorney General Attorneys for Defendants The Capitol Albany, NY 12224

DAVID N. HURD United States District Judge ORDER ON REPORT & RECOMMENDATION

On September 4, 2015, pro se plaintiff Terry Daum (“plaintiff”) who was, and now is, an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), filed this

action alleging that various DOCCS officials violated his rights under the Eight Amendment. Dkt. No. 1. Along with his complaint, plaintiff also

moved for leave to proceed in forma pauperis (“IFP Application”). Dkt. Nos. 2, 3. On November 17, 2015, this Court granted plaintiff’s IFP Application and conducted an initial review of the original pleading. Dkt. No. 7. At that time,

the Court dismissed some of plaintiff’s claims against certain defendants but permitted several others to proceed.

As relevant here, allegations of an Eighth Amendment violation arising from two pat frisk searches conducted by defendant Stickney were dismissed.

Thereafter, plaintiff amended his complaint to add some First Amendment retaliation claims, Dkt. No. 29, the parties completed discovery, and the case went to a jury trial on plaintiff’s § 1983 excessive force / failure to intervene and retaliation claims against defendants Stickney, Devlin, and Cross. The

jury heard two days of proof and returned a defense verdict. Dkt. No. 173. Judgment was entered accordingly. Dkt. No. 174. Plaintiff appealed. Dkt. No. 176. On June 26, 2023, a panel of the Second Circuit vacated and remanded the dismissal of plaintiff’s Eighth Amendment claims for sexual abuse and

failure to intervene against defendants Stickney, Devlin, and Cross arising from the two pat frisk searches. Dkt. No. 189. According to the Circuit, the early dismissal of those claims was based on a misapplication of Crawford v. Cuomo,

(2d Cir. 2015). Notably, however, the Second Circuit

instructed this Court—on remand—to consider whether qualified immunity might apply to defeat these remaining claims. Dkt. No. 183. On August 31, 2023, defendants moved to dismiss plaintiff’s remanded sexual abuse claims on the basis of qualified immunity. Dkt. No. 194. After

briefing, Dkt. Nos. 196, 197, U.S. Magistrate Judge Daniel J. Stewart advised by Report & Recommendation (“R&R”) that defendants’ motion to dismiss be granted in part and denied in part. Dkt. No. 204. Plaintiff has lodged objections. Dkt. No. 205. Upon de novo review, the

R&R is accepted and will be adopted in all respects.

(b)(1)(C). Therefore, it is ORDERED that 1. The Report & Recommendation (Dkt. No. 204) is ACCEPTED;

2. Defendants’ motion to dismiss (Dkt. No. 194) is GRANTED in part and DENIED in part; 3. Defendant’ motion to dismiss plaintiffs Eighth Amendment sexual abuse claims against defendant Stickney arising out of the first pat frisk that occurred at or near the recreation yard at Clinton Correctional Facility on April 4, 2014 is GRANTED; and 4. Defendants’ motion to dismiss plaintiffs Eight Amendment sexual abuse claims against defendants Stickney, Devlin, and Cross arising out of the second pat frisk that occurred later in the evening at or near the B-Block interview room is DENIED. This matter is REFERRED to Judge Stewart for further proceedings as appropriate. IT IS SO ORDERED.

Dated: August 15, 2024 PUG Utica, New York. U.S. Disfrict Judge

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