U.S. District Court, Western District of N.Y. Case Summaries: July

Daily Record (Rochester, NY), Jul 30, 2008

U.S. District Court, Western District of N.Y.

Eighth Amendment

Medical Care

Dolberry v. Levine

02-CV-6418L

Judge Larimer

Background: The plaintiff is a prison inmate bringing action under [section]1983.?He alleges violations of his constitutional rights while at the Wyoming Correctional Facility. In 2000 he was assaulted by one of the defendant corrections officers, while three other defendants watched and did nothing to stop it. The plaintiff further alleges he was denied medical care and retaliated against for exercising his First Amendment rights and that the defendants put his safety at risk by seeking to house him in the same cell block with a known enemy. He seeks $3 million in damages. The defendants moved to dismiss all claims except the Eighth Amendment claims based on the assault.

Ruling: In order to establish a First Amendment retaliation claim, the plaintiff must show he engaged in constitutionally protected speech or conduct, that the defendants took adverse action against him and that there was a causal connection between the protected activity and the adverse action. The court finds the retaliation claims unfounded and based on conclusory allegations. All causes of action except for the Eighth Amendment claim are dismissed.

Andre Dolberry, pro se, and Emil J. Bove Jr., New York State Attorney General's Office, for the defendant

Self-Incrimination

Suppression

U.S. v. Patt

06-CR-6016

Judge Payson

Background: The defendant is charged with possessing computers and a video cassette containing images of child pornography. The defendant moved to suppress evidence and argues that the Adam Walsh Child Protection and Safety Act is unconstitutional as applied to this case. The Act prohibits the reproduction of child pornography during legal proceedings. Images having nude displays of underage boys were believed to have been downloaded onto a computer located at a residence at 9665 Old Route 31. Further inquiry led to one of the online usernames from the residence, "fullthrottletrucking," matching the wording on a tractor trailer at that location. Investigators obtained a warrant to search the premises and "sit down and talk." Investigators told the defendant he was not under arrest and did not have to talk, but it was in his interest to talk because he could explain "his side of the story." The defendant disclosed that during his senior year of high school, which had been the previous year, he engaged in oral sex with a boy in the back of a school bus and recorded the incident on video. He was arrested and waived his Miranda rights and further incriminating statements followed.

Ruling: The court finds the defendant's due process challenge is based on the impediments encountered by the defendant's computer expert during his analysis as a result of the legislation at issue, and not on any assertion that the results are incomplete or compromised. The defendant's due process challenge is rejected. Judge Payson also finds the defendant was not in custody at the time agents questioned him about the laptop computer. The search was consensual, therefore the motion to suppress the evidence contained on the computer is denied.

Donald M. Thompson for the defendant, and Tiffany H. Lee, U.S. Attorney's Office

Recusal

Prior Involvement

U.S. v. Huffman

05-CR-6011

Judge Larimer

Background: The defendant has moved for Judge Larimer's recusal. The basis for the motion is that Judge Siragusa of the Western District previously was involved in the case. The defendant is charged with threatening to tamper with consumer products and sending threatening communications. Judge Larimer said the defendant "once again filed a pro se motion, although he is represented by counsel. Huffman has been advised on numerous occasions not to file such pro se motions."

Ruling: Since Judge Siragusa is not named in the indictment, is not a victim in that indictment and would not be called as a witness, the motion is denied.

James P. Harrington of Harrington and Mahoney for the defendant, and Anthony M. Bruce, U.S. Attorney's Office, for the United States