Daum v. Racette et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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TERRY DAUM,
Plaintiff,
-v- 	9:15-CV-1083 (DNH/DJS)
CAPTAIN DEVLIN et al.,
Defendants.
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DAVID N. HURD
United States District Judge
ORDER ON REPORT & RECOMMENDATION
Over a decade ago, pro se plaintiff Terry Daum (“plaintiff”) filed this 42
U.S.C. § 1983 action alleging that DOCCS officials violated his Eighth Amend-
ment rights. 	Dkt. No. 1. 	Because plaintiff sought IFP status, Dkt. Nos. 2, 3,
this Court conducted an initial review of the pleading and permitted certain
claims to go to discovery. 	Dkt. No. 7. 	However, this Court determined that
certain claims could not go to discovery: allegations against defendants Stick-
ney, Devlin, and Cross involving two pat-frisk searches. Id.
Thereafter, plaintiff amended his complaint to add some First Amend-
ment retaliation claims, Dkt. No. 29, the parties completed discovery, Dkt. No.
126, the Court assigned pro bono counsel for plaintiff, see Dkt. No. 136, and the
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case went to a jury trial on plaintiff’s § 1983 claims in the spring of 2021. The
jury heard two days of proof and returned a defense verdict. Dkt. No. 173.
Plaintiff appealed. 	Dkt. No. 176. 	There, a panel of the Second Circuit
concluded that this Court had erred in dismissing, way back on initial review,
plaintiff’s Eighth Amendment sexual-abuse claims based on the two pat-frisk
searches. Dkt. No. 189. The panel vacated and remanded with instructions to
consider whether qualified immunity might nevertheless apply to defeat plain-
tiff’s remaining claims. Id.
On remand, 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.
This Court adopted the R&R over plaintiff’s objections on August 15,
2024. Dkt. No. 206. As relevant here, defendants’ Eighth Amendment sexual-
abuse claims arising out of the second pat frisk (against Stickney, Devlin, and
Cross) survived dismissal. Id.
Defendants answered, Dkt. No. 207, the parties conducted a renewed pe-
riod of discovery, Dkt. No. 216, and defendants moved for summary judgment
on the remaining claim by reasserting that qualified immunity should apply.
Dkt. No. 225. 	After briefing, Dkt. Nos. 230, 231, 234, Judge Stewart advised
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in a second R&R that defendants’ motion for summary judgment should be
granted. Dkt. No. 235.
Neither party has lodged objections to the R&R, and the time period in
which to do so has expired. Dkt. No. 235. Upon review for clear error, the R&R
is accepted and will be adopted. See FED. R. C IV . P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 235) is ACCEPTED;
2. Defendant’s motion for summary judgment (Dkt. No. 225) is
GRANTED; and
3. Plaintiff’s operative complaint (Dkt. No. 30) is DISMISSED.
The Clerk of the Court is directed to terminate the pending motions, enter
a judgment accordingly, and close the file.
IT IS SO ORDERED.
Dated: February 26, 2026
Utica, New York.
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