Brooks v. Jackson et al
| Emanuel M. Brooks |
| John Doe, K. Jackson, Tomson and Jane Doe |
| 1:2011cv06627 |
| September 15, 2011 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Franklin |
| Richard J. Holwell |
| Prison Condition |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
62
OPINION AND ORDER re: 44 MOTION to Dismiss the Amended Complaint filed by B. Carver, M Darken, Delwin McCurdy, K. Jackson. For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. All of Brooks 's claims against the moving Defendants (that is, all Defendants other than Officer Tomson) are dismissed except for (1) his Eighth Amendment claim against Officer Jackson in her individual capacity relating to the April 17, 2009 incident; (2) h is Eighth Amendment claim against Officers Darden and McCurdy in their individual capacities relating to the alleged assault around that same date; (3) his First Amendment retaliation claim against Officers Jackson, McCurdy, and Darden in their indiv idual capacities; and (4) his First Amendment Free Exercise claim against Officer Jackson in her individual capacity. As noted, Officer Tomson has not appeared in this action. Because Officer Tomson was not served within 120 days of the filing of th e Complaint, it is hereby ORDERED that Brooks show cause in writing as to why he has failed to serve the summons and Complaint within the 120 days prescribed by Rule 4(m) of the Federal Rules of Civil Procedure or, if Brooks believes that Office Toms on has been served, that he submit a letter to the Court stating when and in what manner such service was made. If the Court does not receive any communication from Brooks within thirty days, showing good cause why such service was not timely made, t he Court will dismiss the case against Officer Tomson. The Clerk of Court is directed to terminate as parties Officer Carver and all other Defendants to the extent they have been sued in their official capacities, to terminate Docket No. 44, and to mail a copy of this Memorandum Opinion and Order to Plaintiff. 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). (Signed by Judge Jesse M. Furman on 9/23/2013) (mro)
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