Fabricio v. Lee et al
| Ederick Fabricio |
| W. Lee, T. Griffin, E. Burnett, D. Wilkins, O'Neil, Collado, Williams, Lilley, Carry, Melville, Hann, Murphy, Deacon, Deegan, Surber, Rodriguez, Monroe, Yando, Miller, Funk, Kelly, Malark, Conforti, Carter, Coccuza, Velardo, V. Cruz, O Chavers, Garcia, Blake, Imperati, III, J. Erns, Grober, Shetsky, Smith, Chase, Pagan, Freeman, Blot Jr., Weslie, Valle, Croofot, Batista, Alvarez, Santoro, Benett-Tibbs, Sweikata, Smith-Whousetobe, Brothers, Anspach, Martin, Tagliaferry, Murdock, Olivera, Corey, Carlson, Cimmino, Sullivan, Stanaway, Bentivegna, Ortiz, Vega, Isaac, Nunez, John Doe and Imposter Inspector General Keiser |
| 1:2016cv08731 |
| November 9, 2016 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Queens |
| Colleen McMahon |
| Prison Condition |
| 42 U.S.C. ยง 1983 |
| None |
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Filing
214
JUDGMENT: It is hereby ORDERED, ADJUDGED AND DECREED: That after a Jury Trial before the Honorable Philip M. Halpern, United States District Judge, the jury having returned a verdict in favor of Defendants, and the Complaint is hereby dismissed. SO ORDERED. (Signed by Judge Philip M. Halpern on 10/27/2021) (jca)
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Filing
205
ORDER: Jury selection will commence on October 20, 2021 at approximately 09:30 a.m. Counsel shall, accordingly, appear in Courtroom 520 on that day at 09:00 a.m. The Court, during the conference, reviewed trial COVID protocols and the jury select ion process with the parties. The parties agreed to use a maximum of three preemptory challenges on each side during jury selection. Defendants advised that, as Anthony Russo is no longer a DOCCS employee, they wish to substitute James LeConey for that witness. Plaintiff indicated that his objections to Russo stand vis--vis LeConey. The Court concluded that any prior rulings as to Russo would apply to LeConey. The Court provided the parties with copies of its Proposed Voir Dire Form. As sta ted on the record, by October 12, 2021, the parties shall file joint a letter advising: (1) as to any objections or modifications (i.e., additional or different names) to the Proposed Voir Dire Form; (2) which of the two similar paragraphs on Page 14 of the Joint Proposed Jury Instructions the parties agree that the Court use; and (3) whether they both do or do not agree as to whether counsel should be allowed to mention specific dollar amounts related to pain and suffering during summation s. If the parties cannot agree on whether they should or should not be permitted to mention specific dollar amounts during summations: (1) the party objecting to the discussion of specific dollar amounts will provide the other with a two-page lette r explaining its position by October 10, 2021; and (2) the party advocating for the discussion of specific dollar amounts will provide a two page letter outlining the basis for its position by October 12, 2021. Should the parties disagree on wheth er counsel may discuss dollar amounts concerning pain and suffering during summation, these position letters will also be filed with the Court on October 12, 2021. As stated on the record, in accordance with Federal Rule of Evidence 611, the Court will limit the anticipated witness testimony to promote efficiency and reduce waste. To this end, the parties agreed that, absent good cause, witnesses will be called once for a maximum of one hour with the exception of Plaintiff (two hours), Dr. B entivegna (ninety minutes), and the Custodian of Records (thirty minutes) identified by Plaintiff. Plaintiff withdrew Dayna Fabricio as a witness. The parties shall also, by October 18, 2021, provide the Court with: (1) three binders containing co pies of all exhibits they expect to introduce; and (2) a flash drive containing copies of all exhibits they expect to introduce. The parties are directed to meet and confer regarding anticipated objections to exhibits. The parties are also encourag ed, to further maximize efficiency, to meet and confer regarding stipulations as to facts and exhibits. If the parties settle, they must so advise the Court by October 18, 2021 so that the prospective jury pool can be cancelled. SO ORDERED. (Jury Selection set for 10/20/2021 at 09:00 AM in Courtroom 520, 300 Quarropas Street, White Plains, NY 10601 before Judge Philip M. Halpern.) (Signed by Judge Philip M. Halpern on 10/6/2021) (jca)
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Filing
200
ORDER granting in part and denying in part 170 Motion in Limine; granting in part and denying in part 181 Motion in Limine. Counsel for Ederick Fabricio (Plaintiff) and counsel for Keith Chase, Jeffery Erns, Keith Brokaw, Brian Corey, Sean C arlson, Jeffrey Miller, Reginald Lorde-Gray, and Stanley Phillips (collectively, Defendants) appeared for oral argument today on the parties motions in limine. (Doc. 170; Doc. 181). Argument was held on the record. For the reasons stated on the re cord, and the law cited therein, each motion is GRANTED IN PART and DENIED IN PART. The parties are directed to meet and confer to discuss settlement, resolve outstanding objections to the Proposed Jury Instructions, and combined their Proposed Voir Dire submissions. The parties shall file by 5:00 p.m. on September 24, 2021: (1) a joint letter, no more than two pages, providing the date, time, and duration of each meet and confer along with the status of settlement discussions; (2) a Joint Pr oposed Voir Dire; and (3) Joint Amended Proposed Jury Instructions. As explained on the record, jury selection in this matter will commence on October 18, 2021 or October 20, 2021, as circumstances in the courthouse permit. Should the parties seek the Courts assistance in fostering settlement discussions, they must so advise forthwith. In light of the foregoing, the Clerk of the Court is respectfully directed to terminate the motion sequences pending at Doc. 170 and Doc. 181. The Court shall hold a final pretrial conference at 3:00 p.m. on October 6, 2021.The Court shall advise the parties of the courtroom before the appearance date. SO ORDERED. (Signed by Judge Philip M. Halpern on 8/31/2021) (tg)
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Filing
198
ORDER: Oral argument has been scheduled on the pending motions in limine. The oral argument will be held on August 31, 2021 at 2:00 p.m. at the Hon. Charles L. Brieant Jr. Federal Building and Courthouse, 300 Quarropas Street, White Plains, New York 10601. The Court will advise the parties of the courtroom before the appearance date. All members of the public, including attorneys, appearing at a Southern District of New York courthouse must complete a questionnaire and have their tempera ture taken before being allowed entry into that courthouse. On the day that you are due to arrive at the courthouse, click on the following weblink: https://app.certify.me/SDNYPublic. Follow the instructions and fill out the questionnaire. If your answers meet the requirements for entry, you will be sent a QR code to be used as the SDNY entry device at the courthouse entrance. SO ORDERED. ( Oral Argument set for 8/31/2021 at 02:00 PM before Judge Philip M. Halpern.) (Signed by Judge Philip M. Halpern on 6/8/2021) (va)
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Filing
194
ORDER granting 187 Letter Motion to Seal. Application granted. Plaintiff is granted leave to file under seal the two exhibits identified herein (Docs. 188-1, 188-2). The Clerk of the Court is respectfully directed to seal Doc. 189, permitting access only by the parties and the Court, but to retain the summary docket text for the record. The Clerk of the Court is respectfully directed to terminate the motion sequence pending at Doc. 187. SO ORDERED.. (Signed by Judge Philip M. Halpern on 2/24/2021) (ks)
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Filing
164
ORDER: The Southern District of New York has reconfigured courtrooms and other spaces in its courthouses to allow civil jury trials to proceed as safely as possible during the COVID-19 pandemic. Under the centralized calendaring system currently in place, the Clerk's Office schedules up to three jury trials to begin on each day of jury selection: a primary case and up to two back-up cases that may proceed in its place if the primary case does not go forward. On November 12, 2020, the parties informed the Court that they wished to proceed to trial either during the week of January 19, 2021 or the week of March 29, 2021. The Court accordingly requested a jury trial for those dates. The Clerks Office has now notified the Court t hat this case has been scheduled as the second back-up case on March 30, 2021. This means that the case will proceed on March 30, 2021 if the primary case and the first back-up case do not go forward. The case must be trial-ready for that date. If the case cannot proceed on March 30, 2021, the Court will seek another jury trial date for as soon as possible thereafter. SO ORDERED. (Ready for Trial by 3/30/2021.) (Signed by Judge Philip M. Halpern on 1/5/2021) (jca)
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Filing
148
ORDER: At the status conference held today, June 4, 2020, the following is hereby ordered: Upon being paroled, the Plaintiff is directed to notify the Court and Defense counsel of his change of address within 30 days. If the Plaintiff wishes to co nsent to electronic service, Plaintiff should fill out the Consent & Registration Form to Receive Documents Electronically, which is available at https://nysd.uscourts.gov/sites/default/files/2018-06/proseconsentecfnotice-final.pdf and also attache d to this Order, and return the signed form in PDF format to Temporary_Pro_Se_Filing@nysd.uscourts.gov. The next status conference is scheduled for August 3, 2020, at 10:00 a.m. At the time of the scheduled conference, all parties shall call the following number: (888) 398-2342; access code 3456831. The Defendant is directed to send a copy of said Order to the plaintiff and file proof of service thereof. SO ORDERED. (Signed by Judge Philip M. Halpern on 6/5/2020) (jca)
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Filing
146
ORDER : Consistent with the Court's recent standing orders restricting access to the courthouse, effective immediately. all conferences in all civil cases assigned to Judge Halpern shall be conducted by telephone conference call. Unless othe rwise ordered by the Court, counsel and unrepresented parties shall not attend court in person. It will be the responsibility of counsel to arrange a conference call. At the time of the scheduled conference, once all counsel (and unrepresented part ies) are on the line, they shall call Chambers at the following number: (914) 390-4160. This Order is subject to revocation at any time. In that event, the Court will notify counsel (and unrepresented parties) sufficiently in advance of the scheduled conference to allow participants to attend Court in person. SO ORDERED. (Signed by Judge Philip M. Halpern on 3/18/2020) (ks)
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Filing
143
ORDER GRANTING REQUEST FOR PRO BONO COUNSEL: For the foregoing reasons, the Clerk of Court is directed to attempt to locate pro bono counsel to represent plaintiff for the purpose of trial. The Court advises Plaintiff there are no funds to retain cou nsel in civil cases and the Court relies on volunteers. Due to a scarcity of volunteer attorneys, a lengthy period of time may pass before counsel volunteers to represent Plaintiff. Nevertheless, this litigation will progress at a normal pace. If an attorney volunteers, the attorney will contact Plaintiff directly. There is no guarantee, however, that a volunteer attorney will decide to take the case, and Plaintiff should be prepared to proceed with the case pro se. Of course, if an attorney o ffers to take the case, it is entirely Plaintiff's decision whether to retain that attorney or not. Under the Court's Standing Order regarding the Creation and Administration of the Pro Bono Fund (16-MC-0078), pro bono counsel may apply to the Court for reimbursement of certain out-of-pocket expenses spent in furtherance of plaintiff's case. The Pro Bono Fund is especially intended for attorneys for whom pro bono service is a financial hardship. See http://www.nysd.circ2.dcn/docs/ prose/pro_bono_fund_order.pdf. To allow the Clerk time to locate pro bono counsel, the January 30, 2020, conference is adjourned to April 3, 2020, at 9:30 a.m. The Clerk is further directed to (i) terminate the motion (Doc. #142) and (ii) mail a copy of this Order to plaintiff at the address on the docket. The Court certifies under 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 Cop pedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Motions terminated: 142 APPLICATION for the Court to Request Counsel filed by Ederick Fabricio. (Status Conference set for 4/3/2020 at 09:30 AM before Judge Vincent L. Briccetti.) (Signed by Judge Vincent L. Briccetti on 1/2/2020) (mml) Transmission to Docket Assistant Clerk for processing.
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Filing
141
ORDER: As discussed at an on-the-record conference today, which counsel for defendants attended in person and plaintiff, proceeding pro se and in forma pauperis, attended by telephone, it is HEREBY ORDERED: 1. For the reasons stated on the record, p laintiffs requests for additional discovery are DENIED. Discovery is closed. 2. By January 3, 2020, plaintiff shall file a request for the Comito seek pro bono counsel on his behalf. 3. The next conference is scheduled for January 30, 2020, at 9:3 0 a.m. Defense counsel shall make all arrangements necessary for plaintiff to appear by telephone. The Clerk is directed to mail a copy of this Order to plaintiff at the address on the docket. The Court certifies under 28 U.S.C. § 1915(a)(3) t hat any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). (Status Conference set for 1/30/2020 at 09:30 AM before Judge Vincent L. Briccetti.) (Signed by Judge Vincent L. Briccetti on 12/20/2019) (mml) Transmission to Docket Assistant Clerk for processing.
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Filing
101
OPINION AND ORDER re: 82 MOTION to Dismiss . filed by D. Wilkins, T. Griffin, Hann, Corey, Conforti, Surber, V. Cruz, Murphy, Carry, Valle, C.O. Brokaw, Imposter Inspector General Keiser, Carlson, Bentivegna, Tagliaferry, Miller, O Chavers, J. Erns, Isaac, Chase, E. Burnett, Sullivan, C.O. Phillips, Stanaway, C.O. Lorde-Gray, Rodriguez. The partial motion to dismiss the amended complaint is GRANTED IN PART and DENIED IN PART. The motion to dismiss or for a more definite statement is DENIED. The sole remaining claims in this case are: (i) excessive force against Sgt. Miller, C.O. Chase, C.O. Erns, C.O. Carlson, C.O. Corey, C.O. Phillips C.O. Brokaw, and C.O. Lorde-Gray; and (ii) fail ure to intervene against Sgt. Miller, C.O. Phillips, C.O. Brokaw, and C.O. Lorde-Gray. Defendants shall file an answer by March 20, 2019. The Clerk is instructed to (i) terminate defendants Supt. T. Griffin, Dep. Supt. E. Burnett, Dep. Supt. D. Wilki ns, Capt. Carry, Lt. Hann, Lt. Murphy, Sgt. Surber, Sgt. Rodriguez, Sgt. Conforti, C.O. V. Cruz, C.O. Chavers, C.O. Valle, C.O. Tagliaferry, C.O. Sullivan, I.G. Ortiz, I.G. John Doe, I.G. Isaac, IGRC Supervisor Stanaway, Dr. Bentivegna, and Imposter Inspector General Keyser from the docket, and (ii) terminate the motion. (Doc. #82). 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 in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). Corey answer due 3/20/2019; C.O. Phillips answer due 3/20/2019; Carlson answer due 3/20/2019; Miller answer due 3/20/2019; C.O. Brokaw answer due 3/20/ 2019; Chase answer due 3/20/2019; C.O. Lorde-Gray answer due 3/20/2019; J. Erns answer due 3/20/2019. Carry, O Chavers, Conforti, V. Cruz, T. Griffin, Hann, Imposter Inspector General Keiser, Isaac, John Doe, Murphy, Ortiz, Rodriguez, Stanaway, Sullivan, Surber, Tagliaferry, Valle, D. Wilkins, Bentivegna and E. Burnett terminated. (Signed by Judge Vincent L. Briccetti on 3/6/2019) Copies Mailed By Chambers. (kv)
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