Baines v. The City of New York et al
| Donnell Baines |
| Brian White, Peter Guyheen, Michael Delmerico, John Christman, Joseph Leonard, Chris McNerney, Joseph Cutrone, Odonoghue and Kimberly Crystal Mitchell |
| 1:2010cv09545 |
| December 17, 2010 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Queens |
| Jesse M. Furman |
| Prisoner: Civil Rights |
| 42 U.S.C. ยง 1983 Prisoner Civil Rights |
| Both |
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Filing
215
MEMORANDUM OPINION AND ORDER re: 213 LETTER addressed to Judge Jesse M. Furman from Donnell Baines, dated 9/6/17 re: Plaintiff requests that the Court grant him relief pursuant to Fed.R.Civ.P. Rule 60(b); or that the Court reverse that portion of i ts 8/9/17 Order which deprives Baines of his right to appeal in forma pauperis, or that the Court provide him with reasons pursuant to Fed.R.App.P. Rule 24(3)(A) & (4) for its certification etc. To the extent that Baines seeks reconsideration of the Court's certification, the request is denied. Under normal circumstances, "[w]here a notice of appeal has been filed...the district court is divested of 'control over those aspects of the case involved in the appeal.'" Ho ffenberg v. United States, No. 00-CV-1686 (RWS), 2004 WL 2338144, at *2-3 (S.D.N.Y. Oct. 18, 2004) (quoting Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985)). "Where, however, a notice of appeal has been filed from an o rder that is non-appealable, jurisdiction does not rest with the Court of Appeals but remains with the district court." Id. (citing cases). Accordingly, the Court retains jurisdiction over this case in all respects, and all existing dates and deadlines (including the September 29, 2017 deadline to contact the Chambers of Magistrate Judge Cott to schedule a settlement conference as soon as possible (Opinion at 8) remain in effect. The Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith (for the same reasons), and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to mail a copy of this Order to Plaintiff, and as further set forth herein. (Signed by Judge Jesse M. Furman on 9/26/2017) (ras)
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Filing
211
MEMORANDUM OPINION AND ORDER re: 187 MOTION for Summary Judgment, filed by Brian White, Michael Delmerico, Peter Guyheen, Chris McNerney, John Christman, Odonoghue, Joseph Cutrone, Joseph Leonard. The Court grants summary judgment wit h respect to (1) Baines's claims against Officers Delmerico, McNerney, and Cutrone; and (2) his claim against Officer O'Donoghue with respect to the initial alleged unlawful entry (and related allegations). Otherwise, Defendants' motio n for summary judgment is denied. By separate Order to be entered today, the Court is referring the case for settlement-purposes only to the assigned Magistrate Judge (the Honorable James L. Cott). No later than one week after pro bono counsel en ters a notice of appearance or September 29, 2017, whichever is earlier, the parties shall contact the Chambers of Magistrate Judge Cott to schedule a settlement conference as soon as possible. In the event that the case does not settle, the Court will issue a further Order with respect to the timing and procedures leading up to trial (the details of which will depend on whether Baines is represented or not). The Clerk of Court is directed to terminate Docket No. 187; to terminate Officers De lmerico, McNerney, and Cutrone as Defendants; and to mail Baines a copy of this Opinion and Order. This Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith, and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Chris McNerney (Shield #11264, Individually and as Police Officer for the City of New York), Joseph Cutrone (Shield #1168, Individually and as a Police Officer for the City of New York) and Michael Delmerico (Shield #1138, Individually and as a Police Officer for the City of New York) terminated.) (Signed by Judge Jesse M. Furman on 8/9/2017) (ras)
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Filing
158
MEMORANDUM OPINION AND ORDER: For those reasons and substantially for the reasons stated in Defendants' opposition (Docket No. 155), Plaintiff's objections are overruled and Judge Cott's rulings are affirmed in their entirety. The Clerk of Court is directed to mail a copy of this Memorandum Opinion and Order to Plaintiff. (As further set forth in this Opinion) (Signed by Judge Jesse M. Furman on 5/3/2016) (kl)
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Filing
107
OPINION AND ORDER re: 96 MOTION to Dismiss filed by Brian White, Michael Delmerico, Peter Guyheen, Chris McNerney, John Christman, Odonoghue, Joseph Cutrone, Joseph Leonard: For the reasons stated above, the Officer De fendants' motion to dismiss is GRANTED in part and DENIED in part. Specifically, with respect to the Officer Defendants, Plaintiff's equal protection, due process, and conspiracy claims are dismissed, while his claims under the Fourth Am endment - for the allegedly unlawful entries into his apartment and the allegedly unlawful search - survive. (Additionally, as noted, the Officer Defendants did not move to dismiss Plaintiff's excessive-force claim.) Further, the Court sua sp onte dismisses the conspiracy and due process claims against Mitchell. As those are Plaintiff's only claims against Mitchell, the Clerk of the Court is directed to terminate her as a party to this litigation. The Clerk is also directed to terminate Docket No. 96 and to mail Plaintiff a copy of this Opinion and Order. (Signed by Judge Jesse M. Furman on 6/8/2015) (tn)
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Filing
47
MEMORANDUM OPINION AND ORDER re 39 MOTION for Judgment on the Pleadings filed by The City of New York: For the reasons set forth within, the City's motion is GRANTED, and all claims against the City are dismissed. Furthermore, as noted, there is no indication in the record that any of the individual Defendants has been served even though the Complaint was filed well over 120 days ago. Accordingly, it is hereby ORDERED that, within three weeks, Plaintiff shall communicate with the Court, i n writing, as to why Plaintiff has failed to serve the summons and Complaint on the individual Defendants within the 120 days prescribed by Rule 4(m) of the Federal Rules of Civil Procedure, or, if Plaintiff believes that the individual Defendants ha ve been served, when and in what manner such service was made. IT IS FURTHER ORDERED that if the Court does not receive any communication from Plaintiff within three weeks, showing good cause why such service was not made within the 120 days, the Court will dismiss the case without further notice. The Clerk of the Court is directed to terminate Docket No. 39 and to mail a copy of this Memorandum Opinion and Order to Plaintiff. (Signed by Judge Jesse M. Furman on 3/19/2014) (ab)
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