Davis v. Cohart et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
LARRY DAVIS,
Plaintiff,
-v- 	9:24-CV-384 (AJB/MJK)
LISA WESTMILLER,
Defendant.
_____________________________________
APPEARANCES: 	OF COUNSEL:
LARRY DAVIS
Plaintiff, Pro Se
12-A-1804
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902
Hon. Anthony Brindisi, U.S. District Judge:
ORDER ON REPORT & RECOMMENDATION
On March 20, 2024, pro se plaintiff Larry Davis (“plaintiff”), an individual in the custody
of the New York State Department of Corrections and Community Supervision (“DOCCS”), filed
this 42 U.S.C. § 1983 action alleging that various defendants violated his constitutional rights
while he was being housed at Auburn Correctional Facility. Dkt. No. 1. Along with his complaint,
plaintiff moved for leave to proceed in forma pauperis (“IFP Application”). Dkt. Nos. 2, 3. The
matter was initially assigned to U.S. District Judge Mae A. D’Agostino.
On April 25, 2024, Judge D’Agostino granted plaintiff’s IFP Application and, after an in-
itial review of his pleading, determined that plaintiff’s § 1983 Eighth Amendment medical indif-
ference claim against defendant Westmiller required a response. Dkt. No. 4. Thereafter, defendant
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Westmiller answered, Dkt. No. 16, and the parties completed a period of discovery, see Dkt. No.
25. 	After the matter was reassigned to this Court, Dkt. No. 19, defendant moved for summary
judgment. Dkt. No. 27. Plaintiff sought and received several extensions of time in which to re-
spond, Dkt. Nos. 29, 30, 32, 33, 34, 35, but never filed an opposition.
On January 21, 2026, U.S. Magistrate Judge Mitchell J. Katz advised by Report & Recom-
mendation (“R&R”) that defendant’s motion for summary judgment be granted and plaintiff’s
complaint be dismissed. Dkt. No. 36. As Judge Katz explained, even accounting for plaintiff’s
version of events, defendant exercised her professional judgment and made a discretionary deter-
mination that plaintiff should be moved to the Residential Crisis Treatment Program. No reason-
able juror could conclude that this decision violated plaintiff’s Eighth Amendment rights.
Plaintiff has not lodged objections, and the time period in which to do so has expired. See
Dkt. No. 36. 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. 36) is ACCEPTED;
2. Defendant’s motion for summary judgment (Dkt. No. 27) is GRANTED; and
3. Plaintiff’s complaint (Dkt. No. 1) is DISMISSED with prejudice.
The Clerk of the Court is directed to terminate the pending motions, enter a judgment ac-
cordingly, and close the file.
IT IS SO ORDERED.
Dated: February 17, 2026
Utica, New York.
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