McDay et al v. Eckert et al

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Case 1:20-cv-00233-JLS-JJM Document101_ Filed 09/24/21 Page1of4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DARLENE McDAY, Individually and as
Executrix of the Estate of Dante Taylor,
and
TEMPLE McDAY,
20-cv-00233 (JLS) (JJM)
Plaintiff,

Vv.

STEWART ECKERT, Superintendent
Wende Correctional Facility, et al.,

Defendant.

DECISION AND ORDER

Plaintiffs Darlene and Temple McDay commenced this action based on the
suicide of Dante Taylor, Darlene’s son and Temple’s grandson, while he was
incarcerated at Wende Correctional Facility. Plaintiffs allege Defendants caused
Taylor’s suicide, and bring claims pursuant to 42 U.S.C. § 1983, including deliberate
indifference/substantive due process, loss of intimate association, and excessive
force, and a state law medical malpractice claim. Dkt. 57. The Court referred this
case to United States Magistrate Judge McCarthy for all pre-trial proceedings
under 28 U.S.C. § 636(b)(1)(A) and (B). Dkt. 23. Pursuant to the referral order,
Judge McCarthy was to hear and report upon dispositive motions pursuant to 28

U.S.C. § 636(b)(1)(B) and (C). Id.

AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO.

Case 1:20-cv-00233-JLS-JJM Document101_ Filed 09/24/21 Page 2of4

Several motions to dismiss were filed, specifically by the State Defendants!,
Dkt. 61; Melvin Maldonado, Dkt. 62; Dylan Janis, Dkt. 63; Thomas White, Dkt. 64;
James Horbett, Dkt. 67; and Timothy Lewalski, Dkt. 69. Defendant Kelly
McDonald also filed a motion to dismiss, and it included a motion to join the
motions to dismiss filed by her co-defendants as they applied to her. Dkt. 68.
However, she later withdrew her motion to dismiss and reiterated her joinder in the
other motions to dismiss. Dkt. 75. Plaintiffs responded in opposition to the motions

to dismiss, Dkt. 74, and the other Defendants filed reply briefs. Dkts. 77, 78, 80-83.

On June 25, 2021, Judge McCarthy issued an Amended Report and
Recommendation (R&R), Dkt. 85, which recommends dismissing Plaintiffs’ loss of
intimate association claims because Plaintiffs failed to “allege that any of the
individual [D]efendants specifically intended to target [their] familial relationship”
with Taylor. Jd. at 8 (internal quotations omitted). Additionally, because Plaintiffs
pled a substantive due process claim alongside their Eighth Amendment deliberate
indifference claim, the R&R recommends dismissing the substantive due process
portion as being subsumed by the Eight Amendment claim. Otherwise, the R&R

recommends allowing the rest of the Amended Complaint to survive.

1 Collectively identifying Defendants Superintendent Stewart Eckert, Bertram
Barall, Diane DiRienzo, R.N., Dana Manchini, Kelly Konesky, LCSW-R, Margaret
Stirk, Kristen Muratore, Sergeant Scott Lambert, Lisa Prishel, R.N., Jill Olivieri,
R.N., Debra Stubeusz, M.D., Anjum Haque, M.D., and Correction Officers Baron,
Creighton, Freeman, Theal and Mark Collett.

2

Case 1:20-cv-00233-JLS-JJM Document101_ Filed 09/24/21 Page 3of4

Defendants White, Dkt. 88, Horbett, Dkt. 89, Lewalski, Dkt. 90, and Janis,
Dkt. 91, all filed objections. The objections argue that Plaintiffs’ allegations with
respect to the deliberate indifference claims were too generalized and conclusory to
establish such claims against the objecting Defendants individually, and that the
R&R erred in concluding these allegations are sufficient. Additionally, Janis also
challenges the R&R’s recommendation to allow Plaintiffs’ excessive force claim
against him to survive, arguing that the Plaintiffs failed to plead specific facts
regarding his involvement. Plaintiffs filed a response, Dkt. 96, and all four

objecting Defendants filed replies. Dkts. 97-100.

A district judge may accept, reject, or modify the findings or
recommendations of a magistrate judge. 28 U.S.C. § 686(b)(1); Fed. R. Civ.
P. 72(b)(3). A district judge must conduct a de novo review of those portions of a
magistrate judge’s recommendation to which a party objects. 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 72(b)(8).

The Court has conducted a de novo review of the relevant record in this case,
and studied the R&R and the parties’ briefs. Based on that review, the Court

accepts and adopts Judge McCarthy's recommendations.

Case 1:20-cv-00233-JLS-JJM Document101_ Filed 09/24/21 Page4of4

CONCLUSION

For the reasons stated above, and in the R&R, Defendants’ motions to
dismiss are GRANTED with respect to Plaintiffs’ loss of intimate association and

substantive due process claims. Those claims are DISMISSED.

SO ORDERED.

Dated: September 24, 2021
Buffalo, New York