Smith v. Labarge et al
| Sincere Smith |
| Labarge, C.O. A.N. Martin, C.O. A.U. Martin, C.O. A.D. Martin, C.O. M. Phillips, C.O. Ashley, C.O. Latray, C.O. Rowe, C.O. Tatro, C.O. G. Cary, C.O. E. Smith and Sergeant Miller |
| 9:2024cv00139 |
| January 31, 2024 |
| US District Court for the Northern District of New York |
| Mae A D'Agostino |
| Therese Wiley Dancks |
| Prisoner: Civil Rights |
| 42 U.S.C. § 1983 Prisoner Civil Rights |
| Plaintiff |
Docket Report
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| Document Text |
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| Filing 10 NOTICE to plaintiff of the 4/19/2024 deadline to provide copies of the compliant for service. (Copy served via regular mail) (meb) |
| Filing 9 DECISION AND ORDER: It is hereby ORDERED that the Eighth Amendment deliberate medical indifference 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; and it is further ORDERED that the Eighth Amendment excessive force and failure-to-intervene claims against A.N. Martin, A.U. Martin, A.D. Martin, Phillips, Ashley, Latray, Rowe, Tatro, Cary, Smith, and Labarge survive the Court's sua sponte review under 28 U.S.C. 1915(e)(2)(B) and 28 U.S.C. 1915A(b) and require a response; and it is further ORDERED that upon receipt of the documents for service from plaintiff, the Clerk shall issue summonses and forward them, along with copies of the complaint, to the United States Marshal for service upon the remaining defendants. The Clerk shall forward a copy of the summonses and complaint to the Office of the Attorney General, together with a copy of this Decision and Order by electronic mail only; and it is further ORDERED that defendants or their counsel, shall file a response to the complaint as provided for in the Federal Rules of Civil Procedure. Signed by U.S. District Judge Mae A. D'Agostino on 3/20/2024. (Attachments: #1 Case law)(Copy served via regular mail)(meb) |
| Filing 8 Case transferred in from District of New York Southern; Case Number 7:23-cv-10264. electronically transferred when case opened |
| MAILING RECEIPT: Document No: 5. Mailed to: Sincere Smith DINNo.18A4013 309 Bare Hill Road P.O. Box 2000 Malone, NY 12953. (mt) [Transferred from New York Southern on 1/31/2024.] |
Filing 7
INFORMATION PACKAGE MAILED to Sincere Smith DIN No. 18A4013 Upstate Correctional Facility 309 Bare Hill Road P.O. Box 2000 Malone, NY 12953, at, on 1/25/2024 Re: #5 Order of Service. The following document(s) were enclosed in the Service Package: a copy of the order of service or order to answer and other orders entered to date, the individual practices of the district judge and magistrate judge assigned to your case, Instructions for Litigants Who Do Not Have Attorneys, Notice Regarding Privacy and Public Access to Electronic Case Files, a Motions guide, a notice that the Pro Se Manual has been discontinued, a Notice of Change of Address form to use if your contact information changes, a handout explaining matters handled by magistrate judges and consent form to complete if all parties agree to proceed for all purposes before the magistrate judge. (nb) [Transferred from New York Southern on 1/31/2024.]
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| Filing 6 SUMMONS ISSUED as to Sergeant Miller. (nb) [Transferred from New York Southern on 1/31/2024.] |
| FRCP 4 SERVICE PACKAGE DELIVERED TO U.S.M.: on 1/25/2024 Re: Judge Kenneth M. Karas #5 Order of Service. The following document(s) were enclosed in the Service Package: Complaint, Summons, IFP, Order of Service, Completed U.S.M. form(s) for defendant(s)Sincere Smith DIN No. 18A4013 Upstate Correctional Facility 309 Bare Hill Road P.O. Box 2000 Malone, NY 12953. (nb) [Transferred from New York Southern on 1/31/2024.] |
| Mailed a copy of #5 Order of Service, #1 Complaint to New York State Attorney General Managing Attorneys Office, 28 Liberty Street, 16th Floor, New York, NY 10005. (nb) [Transferred from New York Southern on 1/31/2024.] |
| PARTY TRANSFERRED OUT ELECTRONICALLY pertaining to Upstate Correction Officers Labarge, Martin, Martin, Martin, Phillips, Ashley, Rowe, Tatro, Gary, and Smith only, from the U.S.D.C. Southern District of New York to the United States District Court - Northern District of New York.(yv) [Transferred from New York Southern on 1/31/2024.] |
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Filing 5
PARTIAL TRANSFER ORDER AND ORDER OF SERVICE: Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the Complaint, Plaintiff supplies sufficient information to permit the New York State Department of Corrections and Community Supervision ("DOCCS") to identify the Green Haven John Doe Correction Officer. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of the DOCCS, must ascertain the identity of the John Doe whom Plaintiff seeks to sue here and the address where this Defendant may be served. The Attorney General must provide this information to Plaintiff and the Court within sixty days of the date of this order. Within thirty days of receiving this information, Plaintiff must request that the Court direct the Clerk of Court to add the newly named defendant to the action and to complete the Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the Complaint, Plaintiff supplies sufficient information to permit the New York State Department of Corrections and Community Supervision ("DOCCS") to identify the Green Haven John Doe Correction Officer. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of the DOCCS, must ascertain the identity of the John Doe whom Plaintiff seeks to sue here and the address where this Defendant may be served. The Attorney General must provide this information to Plaintiff and the Court within sixty days of the date of this order. Within thirty days of receiving this information, Plaintiff must request that the Court direct the Clerk of Court to add the newly named defendant to the action and to complete the USM-285 form with the address for the John Doe Defendant and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is also directed to terminate from this action Defendants LaBarge, Martin, Martin, Martin, Phillips, Ashley, Rowe, Tatro, Gary, and Smith, without prejudice to the litigation of Plaintiff's claims against these defendants in the Northern District of New York. 7 C. Valentin Order for John Doe Officer Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the Complaint, Plaintiff supplies sufficient information to permit the New York State Department of Corrections and Community Supervision (DOCCS) to identify the Green Haven John Doe Correction Officer. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of the DOCCS, must ascertain the identity of the John Doe whom Plaintiff seeks to sue here and the address where this Defendant may be served. The Attorney General must provide this information to Plaintiff and the Court within sixty days of the date of this order. Within thirty days of receiving this information, Plaintiff must request that the Court direct the Clerk of Court to add the newly named defendant to the action and to complete the USM-285 form with the address for the John Doe Defendant and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is directed to transfer the claims brought against the Upstate Defendants to the United States District Court for the Northern District of New York. The Clerk of Court is also directed to terminate from this action Defendants LaBarge, Martin, Martin, Martin, Phillips, Ashley, Rowe, Tatro, Gary, and Smith, without prejudice to the litigation of Plaintiffs claims against these defendants in the Northern District of New York. The Clerk of Court is further instructed to (1) issue a summons for Sergeant Miller, (2) complete the USM-285 form with the address for Miller, (3) deliver all documents necessary to effect service to the U.S. Marshals Service, and (4) mail Plaintiff an information package. The Clerk of Court is directed to mail a copy of this Order and the Complaint to the New York State Attorney General at: Managing Attorneys Office, 28 Liberty Street, 16th Floor, New York, NY 10005. Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court's website under "Forms" and are titled "Plaintiff's Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents." Within 120 days of service of the Complaint, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim. The Court certifies, pursuant to 28 U.S.C 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED.:, (Labarge, A.D. Martin, A.N. Martin, A.U. Martin, M. Phillips, Rowe, E. Smith, Tatro, Ashley and G. Cary terminated.) (Signed by Judge Kenneth M. Karas on 1/24/24) (yv) Transmission to Office of the Clerk of Court for processing. Transmission to Pro Se Assistants for processing. Modified on 1/31/2024 (yv). [Transferred from New York Southern on 1/31/2024.]
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| NOTICE OF CASE REASSIGNMENT to Judge Kenneth M. Karas. Judge Laura Taylor Swain is no longer assigned to the case. (sgz) [Transferred from New York Southern on 1/31/2024.] |
| Magistrate Judge Victoria Reznik is designated to handle matters that may be referred in this case. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (sgz) [Transferred from New York Southern on 1/31/2024.] |
| MAILING RECEIPT: Document No: 4. Mailed to: Sincere Smith DINNo.18A4013 309 Bare Hill Road P.O. Box 2000 Malone, NY 12953. ; and to Warden, Upstate Correctional Facility (sha) [Transferred from New York Southern on 1/31/2024.] |
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Filing 4
ORDER GRANTING IFP APPLICATION IN PRISONER CASE: The Clerk of Court is directed to send a copy of this order and the prisoner authorization to the agency having custody of Plaintiff. That agency is directed to forward copies of Plaintiffs prison trust fund account for the past six months and to disburse the payments required under 28 U.S.C. 1915 to the United States District Court for the Southern District of New York and to include the above docket number on the disbursement before sending it to the Court. If Plaintiff is transferred to another facility, the current facility shall provide a copy of this order to thefacility to which Plaintiff is transferred. Finally, it is Plaintiffs obligation to promptly submit a written notification to the Court if Plaintiffs address changes, and the Court may dismiss the action if Plaintiff fails to do so.SO ORDERED. (Signed by Judge Laura Taylor Swain on 11/28/2023) (sha) [Transferred from New York Southern on 1/31/2024.]
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| NOTICE OF CASE REASSIGNMENT - SUA SPONTE to Judge Laura Taylor Swain. Judge Unassigned is no longer assigned to the case. (vba) [Transferred from New York Southern on 1/31/2024.] |
| Filing 3 PRISONER AUTHORIZATION. Document filed by Sincere Smith..(rdz) [Transferred from New York Southern on 1/31/2024.] |
| Filing 2 REQUEST TO PROCEED IN FORMA PAUPERIS. Document filed by Sincere Smith..(rdz) [Transferred from New York Southern on 1/31/2024.] |
| Filing 1 COMPLAINT against Ashley, G. Cary, Labarge, Latray, A.D. Martin, A.N. Martin, A.U. Martin, M. Phillips, Rowe, E. Smith, Tatro. Document filed by Sincere Smith..(rdz) [Transferred from New York Southern on 1/31/2024.] |
| Case Designated ECF. (rdz) [Transferred from New York Southern on 1/31/2024.] |
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