Wilson v. County of Onondaga et al
| Derrick Wilson |
| James Quatrone, Mary Ellen Gossin, Kathleen Corrado, Daniel Babbage, Randy Collins, William J. Fitzpatrick, Michael Ferrante, County of Onondaga, Joseph Cominolli, Christopher Lundborg, Timothy Galineu, John Nolan, Matthew Doran, David Proud, Don Hilton, Carla Freedman, Justine Kreso, Does 1-100, William Kittel, Matthew Kurimsky, Stephen Dougherty and City of Syracuse |
| 5:2020cv01489 |
| December 4, 2020 |
| U.S. District Court for the Northern District of New York |
| Therese Wiley Dancks |
| David N Hurd |
| Miroslav Lovric |
| Glenn T Suddaby |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| Both |
Docket Report
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Filing 54
DECISION and ORDER: The Clerk of the Court is directed to amend the caption to reflect the correct spelling of defendant "Timothy Galanaugh"; The City defendants' {48] motion to dismiss is GRANTED; Plaintiff's 1983 fabrication- of-evidence claim against defendants Proud, Lundborg, Nolan, Babbage, Collins, Galanaugh, Gossin, Kittel, and Quatrone is DISMISSED with prejudice; and The Clerk is directed to terminate Proud, Lundborg, Nolan, Babbage, Collins, Galanaugh, Gossin, Kittel, and Quatrone as defendants in this action. Signed by Judge David N. Hurd on 2/3/2023. (Copy served via regular mail)(mgh)
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Filing 53
CERTIFICATE OF SERVICE by Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Christopher Lundborg, John Nolan, David Proud, James Quatrone re #52 Reply to Response to Motion, (Fair, Gregory)
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Filing 52
REPLY to Response to Motion re #48 MOTION to Dismiss for Failure to State a Claim filed by Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Christopher Lundborg, John Nolan, David Proud, James Quatrone. Motion returnable before Judge David N. filed by Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Christopher Lundborg, John Nolan, David Proud, James Quatrone. (Fair, Gregory)
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Filing 51
RESPONSE in Opposition re #48 MOTION to Dismiss for Failure to State a Claim filed by Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Christopher Lundborg, John Nolan, David Proud, James Quatrone. Motion returnable before Judge David N. filed by Derrick Wilson. (mgh)
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Filing 50
NOTICE of Appearance by Todd M. Long on behalf of Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Christopher Lundborg, David Proud, James Quatrone (Long, Todd)
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CLERK'S CORRECTION OF DOCKET ENTRY re #47 Notice of Appearance: Counsel notified the Clerk's office that the attached Certificate of service contained an error as to service on the Plaintiff in this action. The Clerk has replaced the document with the corrected copy. (mgh)
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Filing 49
CERTIFICATE OF SERVICE by Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Christopher Lundborg, John Nolan, David Proud, James Quatrone re #48 MOTION to Dismiss for Failure to State a Claim filed by Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Christopher Lundborg, John Nolan, David Proud, James Quatrone. Motion returnable before Judge David N. (Fair, Gregory)
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Filing 48
MOTION to Dismiss for Failure to State a Claim filed by Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Christopher Lundborg, John Nolan, David Proud, James Quatrone. Motion returnable before Judge David N. Hurd Response to Motion due by 10/24/2022. Reply to Response to Motion due by 10/31/2022 (Attachments: #1 Memorandum of Law) (Fair, Gregory)
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Filing 47
NOTICE of Appearance by Gregory P. Fair on behalf of Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Christopher Lundborg, David Proud, James Quatrone (Fair, Gregory) (Main Document 47 replaced on 10/4/2022) (mgh, ).
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Filing 46
CERTIFICATE OF SERVICE by Don Hilton of Don Hilton's answer to amended complaint of Derrick Wilson (Heisler, John)
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Filing 45
ANSWER to #25 Amended Complaint,,, by Don Hilton.(Heisler, John)
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Filing 44
ACKNOWLEDGMENT OF SERVICE (USM 299 Form) Executed as to Daniel Babbage served on 8/2/2022, answer due 10/3/2022; Randy Collins served on 8/2/2022, answer due 10/3/2022; Timothy Galineu served on 8/2/2022, answer due 10/3/2022; Mary Ellen Gossin served on 8/2/2022, answer due 10/3/2022; William Kittel served on 8/2/2022, answer due 10/3/2022; Christopher Lundborg served on 8/2/2022, answer due 10/3/2022; David Proud served on 8/2/2022, answer due 10/3/2022. (nas )
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Filing 43
BILL OF COSTS submitted by US Marshal re: Service Fees in the amount of $56.00. (nas, )
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Filing 42
BILL OF COSTS submitted by US Marshal re: Service Fees in the amount of $8.00. (nas, )
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Filing 41
ACKNOWLEDGMENT OF SERVICE (USM 299 Form) Executed as to James Quatrone served on 8/2/2022, answer due 10/3/2022. (nas, )
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Filing 40
CERTIFICATE OF SERVICE by Kathleen Corrado, Justine Kreso, Matthew Kurimsky of Dkt. No. 39 answer to amended complaint (Heisler, John)
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Filing 39
ANSWER to #25 Amended Complaint,,, by Kathleen Corrado, Justine Kreso, Matthew Kurimsky.(Heisler, John)
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Filing 38
Summons Reissued as to Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, Don Hilton, William Kittel, Christopher Lundborg, John Nolan, David Proud, James Quatrone. (Attachments: #1 Summons Re-issued as to Christopher Lundborg, #2 Summons Re-Issued as to John Nolan, #3 Summons Re-issued as to Daniel Babbage, #4 Summons Re-issued as to Randy Collins, #5 Summons Re-issued as to Timothy Galineu, #6 Summons Re-issued as to Mary Ellen Gossin, #7 Summons Issued as to William Kittel, #8 Summons Re-issued as to Don Hilton, #9 Summons Re-issued as to James Quatrone)(mgh)
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Filing 37
ORDER ON REPORT & RECOMMENDATION:The #31 Report & Recommendation is ACCEPTED; Plaintiff's amended complaint is DISMISSED WITH PREJUDICE against defendants Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman; Plaintiff's 1983 fabrication-of-evidence-claim against defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky in their individual capacities SURVIVES INITIAL REVIEW and requires a response; Plaintiff's amended complaint is otherwise DISMISSED WITHOUT FURTHER LEAVE TO AMEND; The Clerk of the Court is directed to TERMINATE defendants County of Onondaga, City of Syracuse, Joseph Cominolli, and Does 1-100; The Clerk of the Court is instructed to re-issue summonses as to Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, and Quatrone; A response to the amended complaint shall be filed by Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, and Quatrone, and/or their counsel, as provided for in the Federal Rules of Civil Procedure; and A response to the amended complaint shall be filed by defendants Corrado, Kreso, and Kurimsky within twenty-one days of the date of this Order. Signed by Judge David N. Hurd on 7/26/2022. (Copy served via regular mail)(mgh)
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***Answer to Amended Complaint due date updated for Kathleen Corrado answer due 8/16/2022; Justine Kreso answer due 8/16/2022; Matthew Kurimsky answer due 8/16/2022. (mgh)
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Filing 36
OBJECTION to #31 Report and Recommendations by Derrick Wilson. Response to Objections to R&R due by 7/19/2022 (mgh)
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Filing 35
TEXT ORDER: Plaintiff's #34 letter motion for a second extension of time in which to file objections to the #31 Report-Recommendation and Order is GRANTED for good cause shown. Plaintiff's objections are now due on or before 7/5/2022. Further extensions will not be granted absent a showing of extraordinary circumstances. So Ordered by Judge David N. Hurd on 5/26/2022. (Copy served upon pltf via regular mail on 5/26/2022)(see)
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Filing 34
Letter Motion for Derrick Wilson requesting an additional extension of 30 days to file objections to the #31 Report & Recommendation submitted to Judge Hurd. (mgh)
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Filing 33
TEXT ORDER: Plaintiff's #32 Letter Motion for a thirty-day extension of time in which to file objections to the #31 Report-Recommendation and Order is GRANTED. Plaintiff's objections are now due on or before June 2, 2022. A further extension will not be granted absent a showing of good cause. So ordered by Judge David N. Hurd. (Objections to R&R due by 6/2/2022) (Copy served via regular mail)(ztc, )
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Filing 32
Letter Motion for Derrick Wilson requesting a thirty day extension of time in which to file objections to the Report-Recommendation submitted to Judge Dancks. (mgh)
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Filing 31
REPORT-RECOMMENDATION AND ORDER: RECOMMENDED that Plaintiff's amended complaint be DISMISSED IN ITS ENTIRETY WITH PREJUDICE against defendants Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman; and it is further RECOMMENDED that Plaintiff's 1983 fabrication-of-evidence claim against defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky in their individual capacities SURVIVES initial review and requires a response; and it is further RECOMMENDED that Plaintiff's amended complaint be otherwise DISMISSED WITHOUT FURTHER LEAVE TO AMEND pursuant to 28 U.S.C. 1915(e) and 1915A for failure to state a claim upon which relief may be granted; and it is further RECOMMENDED that the following defendants be TERMINATED from this action: County of Onondaga, City of Syracuse, Joseph Cominolli, and Does 1-100; and it if further RECOMMENDED that a response to the amended complaint be filed by the remaining defendants, or his/her counsel, as provided for in the Federal Rules of Civil Procedure.( Objections to R&R due by 5/5/2022, Case Review Deadline 5/9/2022) Signed by Magistrate Judge Therese Wiley Dancks on 4/21/2022. (Copy served along with unpublished decisions via regular mail)(mgh)
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Filing 30
TEXT ORDER TO STRIKE re: Dkt. No. #29 : Court received letter (Dkt. No. 29) from Attorney Long from the City of Syracuse's ("City") Corporation Counsel's Office. However, Attorney Long has not filed a notice of appearance, nor has any attorney filed a notice of appearance on behalf of the City or any of the named City police officers. Further, a review of the docket shows that neither the City, nor any of the named City police officers have returned the acknowledgement of service. As such, the Clerk is directed to strike Dkt. No. 29. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 2/2/2022. (A copy of this Text Order has been served on pro se party(ies) via regular mail.)(sg)
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Filing 29
***STRICKEN pursuant to the 2/2/2022 Text Order of Magistrate Judge Therese Wiley Dancks***STATUS REPORT regarding stay to all defendants by City of Syracuse. (Long, Todd) Modified on 2/3/2022 (sg, ).
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Filing 28
Summons Returned Unexecuted as to Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, Don Hilton, William Kittel, Christopher Lundborg, John Nolan, David Proud. (nas, )
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Filing 27
BILL OF COSTS submitted by US Marshal re: Service Fees in the amount of $104.00. (nas, )
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Filing 26
TEXT ORDER: Court has received plaintiff's amended complaint (Dkt. No. #25 ) which requires an initial review under 28 USC Section 1915 which the Court will do in due course before issuing any summonses submitted by plaintiff. The time to respond to the amended complaint for any defendants who have already been served and/or answered in the action based upon the original complaint is stayed until the Court has completed its initial review of the amended complaint. SO ORDERED by Magistrate Judge Therese Wiley Dancks on 1/31/2022. (A copy of this Text Order has been served on pro se party(ies) via regular mail.)(sg )
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Filing 25
AMENDED COMPLAINT against All Defendants filed by Derrick Wilson. (Attachments: #1 Proposed Summons as to Carla Freedman, #2 Proposed Summons at to Christopher Lundborg, #3 Proposed Summons as to Daniel Babbage, #4 Proposed Summons as to David Proud, #5 Proposed Summons as to Don Hilton, #6 Proposed Summons as to James Quatrone, #7 Proposed Summons as to John Nolan, #8 Proposed Summons as to Joseph Cominolli, #9 Proposed Summons as to Mary Ellen Gossin, #10 Proposed Summons as to Matthew Doran, #11 Proposed Summons as to Michael Ferrante, #12 Proposed Summons as to County Onondaga, #13 Proposed Summons as to City of Syracuse, #14 Proposed Summons as to Randy Collins, #15 Proposed Summons as to Stephen Dougherty, #16 Proposed Summons as to Timothy Galineu, #17 Proposed Summons as to William J. Fitzpatrick, #18 Proposed Summons as to William Kittel)(mgh)
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Filing 24
CERTIFICATE OF SERVICE by Kathleen Corrado, Justine Kreso, Matthew Kurimsky of the answer of Justine Kreso, Matthew Kurimsky, and Kathleen Corrado (Dkt. No. 23) to the complaint (Dkt. No. 1). (Heisler, John)
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Filing 23
ANSWER to #1 Complaint,, by Kathleen Corrado, Justine Kreso, Matthew Kurimsky.(Heisler, John)
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Filing 22
ACKNOWLEDGMENT OF SERVICE (USM 299 Form) Executed as to James Quatrone served on 12/22/2021, answer due 2/22/2022. (nas, )
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Filing 21
ACKNOWLEDGMENT OF SERVICE (USM 299 Form) Executed as to Kathleen Corrado served on 12/22/2021, answer due 2/22/2022. (nas, )
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Filing 20
ACKNOWLEDGMENT OF SERVICE (USM 299 Form) Executed as to Justine Kreso served on 12/22/2021, answer due 2/22/2022. (nas, )
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Filing 19
ACKNOWLEDGMENT OF SERVICE (USM 299 Form) Executed as to Matthew Kurimsky served on 12/22/2021, answer due 2/22/2022. (nas, )
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Filing 18
Summons Issued as to Daniel Babbage, Randy Collins, Kathleen Corrado, Timothy Galineu, Mary Ellen Gossin, Don Hilton, William Kittel, Justine Kreso, Matthew Kurimsky, Christopher Lundborg, John Nolan, David Proud, James Quatrone. (Attachments: #1 Summons Issued as to Christopher Lundborg, #2 Summons Issued as to John Nolan, #3 Summons Issued as to Daniel Babbage, #4 Summons Issued as to Randy Collins, #5 Summons Issued as to Timothy Galineu, #6 Summons Issued as to William Kittel, #7 Summons Issued as to Mary Ellen Gossin, #8 Summons Issued as to Don Hilton, #9 Summons Issued as to James Quatrone, #10 Summons Issued as to Kathleen Corrado, #11 Summons Issued as to Justine Kreso, #12 Summons Issued as to Matthew Kurimsky)(mgh)
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Filing 17
Notification to Superintendent of Filing - Provided Warden at Yazoo City-Medium with notice of instant action and a copy of Plaintiff's #6 Inmate Authorization Form. USDC/NYND Finance Dept notified. (mgh)
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Filing 16
TEXT ORDER: Pursuant to the December 16, 2021 Order on Report-Recommendation of District Judge David N. Hurd, the following defendants were terminated from this action: Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman. The Clerk is directed to issue summonses and forward them to the US Marshals Service to effect service on Defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky. Plaintiff was granted leave to amend in reference to the remaining defendants. If Plaintiff wishes to amend his complaint, his amended complaint shall be filed no later than January 31, 2022. If Plaintiff has not submitted an amended complaint, the remaining defendants will be terminated in accordance with the December 16, 2021 Order.( Notice of Compliance Deadline 1/31/2022). SO ORDERED by Judge David N. Hurd on 12/16/2021. (Copy served via regular mail)(mgh)
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Filing 15
ORDER ON REPORT & RECOMMENDATION: The Report & Recommendation is ACCEPTED; The Clerk of the Court shall provide the Superintendent of the facility that plaintiff has designated as his current location with a copy of plaintiff's inmate authorization form (Dkt. No. #6 ) and notify that official that plaintiff has filed this action and is required to pay to the Northern District of New York the entire statutory filing fee of $350 in installments, over time, pursuant to 28 U.S.C. 1915; Plaintiff's complaint is DISMISSED IN ITS ENTIRETY against defendants Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman; Plaintiffs 1983 fabrication-of-evidence claim against defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky in their individual capacities SURVIVES initial review and requires a response; and Plaintiff's complaint is otherwise DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND pursuant to 28 U.S.C. 1915(e) and 1915A for failure to state a claim upon which relief may be granted. Signed by Judge David N. Hurd on 12/16/2021. (Copy served via regular mail)(mgh)
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Filing 14
TEXT ORDER OF RECUSAL. The undersigned hereby RECUSES himself from this action. Having reviewed this matter more closely, it has come to my attention that I may have a conflict of interest, and therefore I recuse myself from this case. WHEREFORE, it is hereby ORDERED that the Clerk enter this Text Order of Recusal for the undersigned; and it is further ORDERED that the Clerk shall randomly reassign this case to another United States District Judge. (Chief Judge Glenn T. Suddaby recused. Case reassigned to District Judge David N. Hurd for all further proceedings. Magistrate Judge Therese Wiley Dancks remains as the assigned magistrate judge in this action.) SO ORDERED by Chief Judge Glenn T. Suddaby on 12/14/2021. (Copy served upon plaintiff via regular mail) (sal )
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Filing 13
AFFIDAVIT of Service for notice of appearance of John E. Heisler Jr. as counsel for County of Onondaga (Dkt. No. 12) served on plaintiff on 9 Dec 21, filed by County of Onondaga. (Heisler, John)
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Filing 12
NOTICE of Appearance by John E. Heisler, Jr on behalf of County of Onondaga (Heisler, John)
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Filing 11
OBJECTION to #10 Report and Recommendations by Derrick Wilson. (mgh)
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Filing 10
ORDER AND REPORT-RECOMMENDATION: ORDERED that Plaintiff's #2 IFP Application is GRANTED; RECOMMENDED that the Clerk be directed to provide the Superintendent of the facility that Plaintiff has designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. #6 ), and notify that official that Plaintiff has filed this action and is required to pay to the Northern District of New York the entire statutory filing fee of $350 in installments, over time, pursuant to 28 U.S.C. 1915; ORDERED that the Clerk is directed to revise the docket sheet to ADD the CITY OF SYRACUSE as a DEFENDANT; RECOMMENDED that the complaint be DISMISSED IN ITS ENTIRETY as against Defendants Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman; RECOMMENDED that only Plaintiffs Section 1983 fabrication of evidence claim against Defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky in their individual capacities SURVIVES initial review and requires a response; RECOMMENDED that Plaintiff's complaint otherwise be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND pursuant to 28 U.S.C. 1915(e) and 28 U.S.C. 1915A for failure to state a claim upon which relief may be granted. ( Objections to R&R due by 5/5/2021, Case Review Deadline 5/10/2021),. Signed by Magistrate Judge Therese Wiley Dancks on 4/21/2021. (Copy served via regular mail)(mgh)
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Filing 9
DOCKET ANNOTATION: 23 copies of the #1 complaint, proposed summons, and USM 285's received. (kmc)
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Filing 8
ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Therese Wiley Dancks for all further proceedings. Magistrate Judge Miroslav Lovric no longer assigned to case. The case will remain assigned to the Honorable Glenn T.Suddaby, Chief U.S. District Judge. Signed by Chief Judge Glenn T. Suddaby on 1/4/2020. (Copy served via regular mail)(mgh)
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Filing 7
TEXT ORDER REOPENING CASE: This action was administratively closed due to plaintiff's failure to comply with the filing fee requirements, and plaintiff was directed to respond to the Order if he wished to pursue this action. Plaintiff has now responded. The Clerk is directed to reopen this action and restore it to the Court's active docket. SO ORDERED by Chief Judge Glenn T. Suddaby on 12/30/2020. (Copy served upon plaintiff via regular mail). (sal )
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Filing 6
INMATE AUTHORIZATION FORM by Derrick Wilson. (mgh)
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Filing 5
ORDER Directing Administrative Closure with Opportunity to Comply with Filing Fee Requirement. Because this action was not properly commenced, the Clerk is directed to administratively close this action. If plaintiff desires to pursue this action and proceed with his IFP application, he must, within 30 days of the filing date of this Order, submit a completed and signed inmate authorization form. Upon plaintiff's compliance with this Order, the Clerk shall reopen this action and forward it to the Court for review. In accordance with the Rule 10.1(c)(2) of the Court's Local Rules, plaintiff shall promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address. Plaintiff's failure to do so may result in the dismissal of this action. The Clerk shall serve a copy of this Order on plaintiff along with a blank inmate authorization form. Signed by Chief Judge Glenn T. Suddaby on 12/7/2020. (Copy of Text Order served upon Plaintiff w/ blank inmate authorization form via regular mail) (sal )
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Filing 4
TEXT ORDER restricting the viewing of Plaintiff's #1 Complaint to case participants, however, once Defendants have appeared in the action both sides will be directed to show cause, in writing, why the sensitive material in the Complaint should not be redacted (e.g., Paragraphs 86 and 87(a)) and the remainder unrestricted. SO ORDERED by Chief Judge Glenn T. Suddaby on 12/7/2020. (Copy served upon Plaintiff via regular mail). (sal )
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Filing 3
Prisoner Trust Fund Account Statement filed by Derrick Wilson. (meb)
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Filing 2
MOTION for Leave to Proceed in forma pauperis filed by Derrick Wilson. (Attachments: #1 Proposed Summons)(meb)
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Filing 1
COMPLAINT WITH JURY DEMAND against Daniel Babbage, Randy Collins, Joseph Cominolli, Kathleen Corrado, County of Onondaga, Does 1-100, Matthew Doran, Stephen Dougherty, Michael Ferrante, William J. Fitzpatrick, Carla Freedman, Timothy Galineu, Mary Ellen Gossin, Don Hilton, William Kittel, Justine Kreso, Matthew Kurimsky, Christopher Lundborg, John Nolan, David Proud, James Quatrone filed by Derrick Wilson. (Attachments: #1 Civil Cover Sheet)(meb) (Additional attachment(s) added on 12/7/2020: #2 Mailing envelope) (meb, ).
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