Rickenbacker v. John Doe No. 1 et al
| Kenneth Rickenbacker |
| John Doe No. 1, John Doe No. 2, John Doe No. 3, John Doe No. 4, B. Kelly, Judge Gary L. Sharpe, Leticia James and State of N.Y. |
| 9:2022cv00541 |
| May 19, 2022 |
| US District Court for the Northern District of New York |
| Mae A D'Agostino |
| Miroslav Lovric |
| Prisoner: Civil Rights |
| 42 U.S.C. § 1983 Prisoner Civil Rights |
| Plaintiff |
Docket Report
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| Filing 23 Summons Issued as to B. Kelly. (Documents served on the NYS AG in compliance with the #21 Decision and Order.) (meb) |
| Filing 22 Notification to Superintendent of Filing - Provided Superintendent at Fishkill Correctional Facility with notice of instant action and a copy of Plaintiff's #11 Inmate Authorization Form. USDC/NYND Finance Dept notified. (meb) |
| Filing 21 DECISION AND ORDER: It is hereby ORDERED that the Clerk provide the Superintendent of the facility, designated by plaintiff as his current location, with a copy of plaintiff's inmate authorization form, and notify the official that this action has been filed and that plaintiff is required to pay the entire statutory filing fee of $350.00 pursuant to 28 U.S.C. 1915; and it is further ORDERED that the Clerk of the Court provide a copy of plaintiff's inmate authorization form to the Financial Deputy of the Clerk's Office; and it is further ORDERED that plaintiff's section 1983 claims against the State of New York, Judge Sharpe, and Attorney General James are DISMISSED with prejudice pursuant to 28 U.S.C. 1915(e)(2)(B) and 28 U.S.C. 1915A(b); and it is further ORDERED that the following claims are DISMISSED without prejudice pursuant to 28 U.S.C. 1915(e)(2)(B) and 28 U.S.C. 1915A(b) for failure to state a claim upon which relief may be granted: (1) Eighth Amendment failure-to-protect claims against John Does #1 through #4; (2) Eighth Amendment condition-of-confinement claims; (3) First Amendment mail and access-to-court claims; and (4) equal protection claims;5 and it is further ORDERED that the Eighth Amendment excessive force claim against Kelly survives the Court's sua sponte review under 28 U.S.C. 1915(e)(2)(B) and 28 U.S.C. 1915A(b) and requires a response; and it is further ORDERED that the State of New York, Judge Sharpe, Attorney General James, and John Does #1 through 4 are DISMISSED as defendants herein; and it is further ORDERED that the Clerk shall issue a summons and forward it along with copies of the complaint, to the United States Marshal for service upon the remaining defendant. The Clerk shall forward a copy of the summons and complaint to the Office of the Attorney General, together with a copy of this Decision and Order; and it is further ORDERED that a response to the complaint be filed by the remaining defendant, or his/her counsel, as provided for in the Federal Rules of Civil Procedure. Signed by U.S. District Judge Mae A. D'Agostino on 6/21/2022. (Copy served via regular mail)(meb) |
| Filing 20 Case transferred in from District of New York Western; Case Number 1:21-cv-00672. electronically transferred when case opened |
Filing 19
ORDER transferring the case to the Northern District of New York. Signed by Hon. Lawrence J. Vilardo on 5/19/2022. (CGJ) Copy mailed to Plaintiff [Transferred from New York Western on 5/19/2022.]
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| Filing 18 MANDATE of USCA as to #15 Notice of Appeal filed by Kenneth Rickenbacker. IT IS HEREBY ORDERED that the appeal is dismissed effective March 28, 2022 unless by that date appellant either pays the fee in full, moves for in forma pauperis status in district court or, if district court has denied in forma pauperis status, moves in this Court for in forma pauperis status. If appellant has filed the motion in district court and the motion is pending, appellant must so advise this Court in writing by the same date. (JLV) [Transferred from New York Western on 5/19/2022.] |
| Filing 17 TEXT ORDEROn October 4, 2021, the pro se plaintiff, Kenneth Rickenbacker, filed a motion for reconsideration of (1) the August 11, 2021 order denying him in forma pauperis status due to his failure to submit a certification of his inmate trust fund account and (2) the September 15, 2021 judgment issued in favor of defendants. Docket Item #13 . He also filed a motion for an extension of time to file a notice of appeal and a notice of appeal on February 7, 2022. Docket Items #14 and #15 . The Court retains jurisdiction over Rickenbacker's motion for reconsideration because it was filed before the notice of appeal. See Rich v. Associated Brands, Inc., 2009 WL 236055, at *1 (W.D.N.Y. Jan. 30, 2009) ("[I]f a notice of appeal is filed after a motion for reconsideration, the district court retains jurisdiction over the motion for reconsideration." (emphasis in original)). Although Rickenbacker does not specifically seek relief under Rule 59 of the Federal Rules of Civil Procedure, Rule 59(e) permits a motion to alter or amend a judgment filed no later than 28 days after the entry of the judgment. Upon review of Rickenbacker's motion for an extension of time to file a notice of appeal, the Court notes that he has attached copies of his inmate trust account statements for the six-month period between July 1, 2021, and December 31, 2021. Docket Item #14 at 3-8. Given the plaintiff's pro se status, the Court construes this attachment as an addendum to his request for reconsideration. The motion for reconsideration is GRANTED and Rickenbacker is permitted to proceed in forma pauperis in this action. His motion for an extension of time to file a notice of appeal is denied as moot. See Fed. R. App. P. 4 ("If a party files a notice of appeal after the court announces or enters a judgmentbut before it disposes of any motion [to alter or amend the judgment under Rule 59]the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered."). SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 4/27/2022.(EK) (Chambers has mailed a copy of this text order to the pro se plaintiff.) [Transferred from New York Western on 5/19/2022.] |
| Filing 16 CLERKS CERTIFICATE filed and electronically sent to Court of Appeals (Attachments: #1 Index)(SG) [Transferred from New York Western on 5/19/2022.] |
| Filing 15 NOTICE OF APPEAL as to #12 Judgment by Kenneth Rickenbacker. FEE STATUS: Fee Due. (SG) Original document maintained in case file due to poor legibility. [Transferred from New York Western on 5/19/2022.] |
| Filing 14 MOTION for Extension of Time to File Notice of Appeal by Kenneth Rickenbacker.(SG) Original document maintained in case file due to poor legibility. [Transferred from New York Western on 5/19/2022.] |
| Filing 13 MOTION for Reconsideration re #12 Judgment, #10 Order by Kenneth Rickenbacker.(JLV) [Transferred from New York Western on 5/19/2022.] |
| Filing 12 JUDGMENT in favor of John Doe No. 1, John Doe No. 2, John Doe No. 3, John Doe No. 4, State of N.Y., B. Kelly, Gary L. Sharpe, Leticia James against Kenneth Rickenbacker. Signed by Mary C. Loewenguth, Clerk of Court on 9/15/21. (SG) [Transferred from New York Western on 5/19/2022.] |
| Final Order, Judgment and Appeal Packet mailed to Plaintiff. (SG) [Transferred from New York Western on 5/19/2022.] |
| Filing 11 Authorization filed by Kenneth Rickenbacker. (JLV) [Transferred from New York Western on 5/19/2022.] |
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Filing 10
ORDER that the Clerk of the Court shall administratively terminate this action without filing the complaint or assessing a filing fee; that the Clerk of the Court shall send Plaintiff a form motion to proceed in forma pauperis; that if Plaintiff wishes to reopen this action, he shall so notify this Court, in writing, no later than 30 days from the date of this order. This writing must include either (a) the required certification of Plaintiff's inmate trust fund account (or institutional equivalent) or (b) the $350.00 filing fee and the $52.00 administrative fee ($402.00 total); that upon Plaintiff's submission of either (a) the required certification of his inmate trust fund account (or institutional equivalent) or (b) the $350.00 filing fee and the $52.00 administrative fee ($402.00 total), the Clerk of the Court shall reopen the case; that if, within 30 days, Plaintiff does not submit either (a) the required certification of Plaintiff's inmate trust fund account (or institutional equivalent) or (b) the $350.00 filing fee and the $52.00 administrative fee ($402.00 total), the complaint will be dismissed without prejudice without further order of this Court. Signed by Hon. Lawrence J. Vilardo on 8/11/2021. (JLV) Copy mailed to pro se plaintiff along with a form motion to proceed in forma pauperis. [Transferred from New York Western on 5/19/2022.]
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| Filing 9 NOTICE of Change of Address by Kenneth Rickenbacker. (JLV) [Transferred from New York Western on 5/19/2022.] |
| Filing 8 MOTION for Leave to Proceed in forma pauperis by Kenneth Rickenbacker. (JLV) [Transferred from New York Western on 5/19/2022.] |
| Filing 7 JUDGMENT in favor of John Doe No. 1, John Doe No. 2, John Doe No. 3, John Doe No. 4, State of N.Y., B. Kelly, Gary L. Sharpe, Leticia James against Kenneth Rickenbacker. Signed by Mary C. Loewenguth, Clerk of Court on 7/12/2021. (JLV) Copy mailed to pro se plaintiff. [Transferred from New York Western on 5/19/2022.] |
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Filing 6
ORDER that the case shall be administratively terminated; that the Clerk of Court shall send to plaintiff a form motion to proceed in forma pauperis; that plaintiff shall notify the Court in writing no later 30 days from the date of this order if he wishes to reopen the action and shall include either the required certification of plaintiff's inmate trust fund account (or institutional equivalent) or the $350.00 filing fee and $52.00 administrative fee; upon receipt of the required certification of his inmate trust fund account (or institutional equivalent) or the filing fee, the Clerk of Court shall re-open the case. Signed by Hon. Lawrence J. Vilardo on 7/12/2021. (JLV) Copy mailed to pro se plaintiff with a form motion to proceed in forma pauperis. [Transferred from New York Western on 5/19/2022.]
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| Filing 5 MOTION for Leave to Proceed in forma pauperis by Kenneth Rickenbacker.(SG) [Transferred from New York Western on 5/19/2022.] |
| Filing 4 JUDGMENT in favor of John Doe No. 1, John Doe No. 2, John Doe No. 3, John Doe No. 4, State of N.Y., B. Kelly, Gary L. Sharpe, Leticia James against Kenneth Rickenbacker. Signed by Mary C. Loewenguth, Clerk of Court on 6/4/21. (SG) [Transferred from New York Western on 5/19/2022.] |
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Filing 3
ORDER case shall be administratively terminated; plaintiff shall notify the Court in writing no later 30 days from the date of this order if he wishes to reopen the action and shall include either a new motion to proceed in forma pauperis that includes a completed and signed Prison Certification and Authorization or the $350.00 filing fee and $52.00 administrative fee; upon receipt of the new motion or the filing fee, the Clerk of Court shall re-open the case. Signed by Hon. Lawrence J. Vilardo on 6/3/21. (SG) [Transferred from New York Western on 5/19/2022.]
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| Pro Se Packet Mailed to Plaintiff which included: Privacy Notice, Consent to Proceed Before a Magistrate Judge, Civil Case Timeline. (SG) [Transferred from New York Western on 5/19/2022.] |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Kenneth Rickenbacker.(SG) [Transferred from New York Western on 5/19/2022.] |
| Filing 1 COMPLAINT against Leticia James, John Doe No. 1, John Doe No. 2, John Doe No. 3, John Doe No. 4, B. Kelly, Gary L. Sharpe, State of N.Y., filed by Kenneth Rickenbacker. (Attachments: #1 Civil Cover Sheet)(SG) [Transferred from New York Western on 5/19/2022.] |
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