Turner v. Dellapia et al
| Wilbert K.A. Turner |
| Jeremy Dellapia, U.S. Justice Department, John Doe and Eman Grant |
| 1:2018cv01973 |
| March 2, 2018 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Westchester |
| Laura Taylor Swain |
| Civil Rights |
| 42 U.S.C. ยง 1983 |
| None |
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Filing
137
ORDER OF DISMISSAL: Federal Rule of Civil Procedure 25(a)(1) provides that "[i]f a party dies and the claim is not extinguished, the court may order substitution of the proper party," that "[a] motion for substitution may be made by an y party or by the decedent's successor or representative," and that "[i]f the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed." More than 90 days have passed since service of a statement noting Plaintiff's death, and no motion for substitution has been made. These consolidated actions are therefore dismissed pursuant to Rule 25(a)(1). Defendants shall promptly mail a copy of this Or der to Plaintiff's last known address, and serve a copy of this Order on Plaintiff's daughter in the same manner as Defendant Gjelaj served his Suggestion of Death, and file a certificate of such service. The Clerk of Court is respectfully directed to terminate all motions and close case nos. 18-CV-1973 and 19-CV-6529. And as set forth herein. SO ORDERED. (Signed by Judge Laura Taylor Swain on 8/10/2021) (ama)
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Filing
129
ORDER: granting 127 Letter Motion to Stay re: 127 LETTER MOTION to Stay discovery in light of Plaintiff's death addressed to Magistrate Judge Gabriel W. Gorenstein from Alexander J. Hogan dated April 12, 2021. All discovery is stayed. The deadline for an authorized representative of plaintiff to move to substitute the proper party is July 15, 2021. (See Fed. R. Civ. P. 6(d)). Any such motion is returnable before the undersigned. Any motion to dismiss for failure to timely subst itute a proper party under Fed. R. Civ. P. 25(a)(1) is returnable before Judge Swain, shall comply with her individual practices, and shall be filed by July 29, 2021. Defendants shall serve a cop of this order on plaintiff and his daughter in the same manner that defendants served this letter. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 4/13/2021) (ama)
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Filing
126
ORDER PURSUANT TO RULE 16(b): The parties have been consulted with respect to the matters contained in this order in accordance with Rule 16(b) of the Federal Rules of Civil Procedure. It is hereby ORDERED as follows: Each party must immediately info rm the Court of any change in that partys address or telephone number. If a party fails to do so, the case may be dismissed or a default entered. All requests for documents and interrogatories shall be sent to the opposing party by April 29, 2021. Re sponses to document requests are due May 28, 2021. All discovery must be completed by July 29, 2021. The Clerk is requested to mail a copy of this Order to plaintiff. And as set forth herein. SO ORDERED., ( Discovery due by 7/29/2021.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/30/2021) (ama) Transmission to Docket Assistant Clerk for processing.
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Filing
121
ORDER: granting in part and denying in part 114 Letter Motion to Stay re: 114 LETTER MOTION to Stay Discovery addressed to Magistrate Judge Gabriel W. Gorenstein from Loren Zeitler dated 1.26.2021. The Court has considered the defendants' mo tion for a stay pending the disposition of the County Defendants and the United States' motions to dismiss. (Docket # 114). In deciding such a request, courts consider: "(1) the breadth of discovery sought, (2) any prejudice that would resu lt, and (3) the strength of the motion." Hong Leong Fin. Ltd. (Singapore) v. Pinnacle Performance Ltd., 297 F.R.D. 69, 72 (S.D.N.Y. 2013) (citation and quotation marks omitted). In this case the Court finds that the County Defendants and the Un ited States have provided substantial arguments in favor of their dismissal. The dismissal of the United States is a virtual certainty. On the other hand, the case is certainly going to proceed against defendant George Gjelaj. And it may be many mo nths before the motions to dismiss are decided. The Court sees no prejudice to the defendants if discovery proceeds now with respect to the case against George Gjelaj. In the unlikely event the County Defendants' motion were denied, and discove ry were to proceed as to them, the person who would suffer prejudice is the plaintiff, who would likely need to be redeposed, not the County Defendants or George Gjelaj. Accordingly, the motion to stay discovery (Docket # 114) is granted in part and denied in part. The case shall proceed as to defendant George Gjelaj. Discovery is stayed as to all other defendants. The attorney for defendant George Gjelaj is directed to contact plaintiff by telephone within 21 days for purposes of creating a dis covery plan. See Fed. R. Civ. P. 26(f). If counsel does not have a telephone number for plaintiff, counsel shall write to plaintiff immediately directing plaintiff to provide such a number and to either call or prepare for a call at a specific date and time. The plan should contain the following elements: as set forth herein. or defendants is responsible for filing the plan with the Court on or beforeMarch 29, 2021. If the parties disagree over the terms of the plan, the disagreement may be no ted in the plan itself. In the alternative, plaintiff may respond by emailing a letter to the Court at Temporary_Pro_Se_Filing@nysd.uscourts.gov within 7 days of the filing of the plan. The email must attach a pdf file of the letter. No text may be in the email itself, except that the subject line of the email must contain the name and docket number of the case. Also, the attached pdf letter must contain the name and docket number wing receipt of any proposed plan, the Court will issue a s cheduling order. Finally, the Court notes that each party must immediately inform the Court of any change in that party's address or telephone number in the future. If a party fails to do so, the case may be dismissed or a default entered. Plea se be aware that the Pro Se Office at the United States Courthouse, 500 Pearl Street, Room 230, New York, New York ((212) 805-0175) may be of assistance in connection with court procedures. The Clerk is requested to mail a copy of this Order to the pro se plaintiff. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/23/2021) (ama) Transmission to Docket Assistant Clerk for processing.
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Filing
113
ORDER PURSUANT TO RULE 16(b)(1)(A): This matter has been referred to the undersigned for general pretrial purposes. The attorney for defendant George Gjelaj is (1) directed to mail a copy of this Order to plaintiff and(2) to contact plaintiff by tel ephone within 21 days for purposes of creating a discovery plan. See Fed. R. Civ. P. 26(f). If counsel does not have a telephone number for plaintiff, counsel shall write to plaintiff immediately directing plaintiff to provide such a number and to ei ther call or prepare for a call at a specific date and time. All defendants shall participate in the telephone call and in the formulation of the discovery plan. The plan should contain the following elements: as set forth herein. Counsel for defenda nts is responsible for filing the plan with the Court on or before February 19, 2021. Finally, the Court notes that each party must immediately inform the Court of any change in that party's address or telephone number in the future. If a party fails to do so, the case may be dismissed or a default entered. The Clerk is requested to mail a copy of this Order to the pro se plaintiff. And as set forth herein. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 1/19/2021) (ama) Transmission to Docket Assistant Clerk for processing.
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Filing
92
ORDER: attorney for defendants is directed to contact plaintiff by telephone within 7 business days for purposes of creating a discovery plan. See Fed. R. Civ. P. 26(f). The plan should contain the following elements: 1. A deadline by which all doc uments requests and initial interrogatories must be served. 2. The deadline for the disclosures of the identities and reports of experts, if any, as required by Rule 26(a)(2)(A) and (B). 3. The deadline for the disclosure of identities and reports of any expert intended by an opposing party solely to rebut previously-disclosed expert evidence. 4. A date by which all discovery must be completed. The parties are free to include additional elements in the plan if they wish. Also, the parties are en couraged to discuss settlement during the telephone conference. If both parties wish the Court to conduct a settlement conference or if a telephone conference is needed for any purpose, theymay so request in the discovery plan. The parties shall incl ude in the plan a statement as to whether any party has information as to an address for service of process on defendant Eman Grant as it appears that Eman Grant could not be served at the address provided by plaintiff (Docket # 16). Counsel for defe ndants is responsible for filing the plan with the Court on or before November 30, 2020. If the parties disagree over the terms of the plan, the disagreement may be noted in the plan itself. In the alternative, plaintiff may respond by sending a let ter to the Court within 7 days of the filing of the plan. Following receipt of any proposed plan, the Court will issue a scheduling order. Finally, the Court notes that each party must immediately inform the Court of any change in that party's a ddress or telephone number in the future. If a party fails to do so, the case maybe dismissed or a default entered. Please be aware that the Pro Se Office at the United States Courthouse, 500 Pearl Street, Room 230, New York, New York ((212) 805-0175 ) may be of assistance in connection with court procedures. The Clerk is requested to mail a copy of this Order to plaintiff. (Signed by Magistrate Judge Gabriel W. Gorenstein on 11/5/2020) (nb) Transmission to Docket Assistant Clerk for processing.
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Filing
91
MEMORANDUM OPINION AND ORDER re: 68 MOTION to Dismiss Plaintiff's Complaint Pursuant to FRCP 12(b)(6) filed by Christopher Kelly, Mark Carey, Erin Moore, 58 MOTION to Dismiss filed by George Gjelaj, Jeremy Dell apia. For the foregoing reasons, the Federal Defendants' motion to dismiss the Complaint (Docket Entry No. 58) is granted to the extent that the Court dismisses all of Plaintiffs claims against agent Dellapia, as well as Plaintiff's comm on law claims against agents Dellapia and Gjelaj, and is otherwise denied. The County Defendants motion to dismiss the Amended Complaint (Docket Entry No. 68) is granted to the extent that the Court dismisses Plaintiff's state law claims aga inst the County Defendants, without prejudice to Plaintiff seeking leave to amend the complaint to allege that he timely filed one or more notices of claim as to those defendants, and is otherwise denied. If Plaintiff wishes to amend his pleadin gs, to allege that he has exhausted his administrative remedies under the FTCA (in support of a claim against the United States) or that he has timely filed one or more notices of claim (in support of his state law claims against the County Defendan ts), or to allege both, he must file a motion to amend his complaint, attaching a proposed amended complaint, by November 30, 2020. Plaintiff is warned that, if accepted, any proposed amended complaint will completely replace (not supplement) any pr ior complaint, and it must therefore include all relevant factual allegations against each remaining defendant (i.e., agent Gjelaj, as well as Christopher Kelly, Erin Moore, and Mark Carey of the Westchester County police department). This case remai ns referred to the Honorable Gabriel W. Gorenstein, United States Magistrate Judge, for general pretrial management. The parties shall promptly report to Judge Gorenstein as required by the Court's Order dated December 13, 2019. (Docket Entry N o. 73.) This Memorandum Opinion and Order resolves Docket Entry Nos. 58 and 68. The Clerk of Court is directed to (1) terminate agent Jeremy Dellapia as a defendant in this action, and (2) mail Plaintiff a copy of this Memorandum Opinion and Order , together with a form Amended Complaint. SO ORDERED. Jeremy Dellapia terminated. (Signed by Judge Laura Taylor Swain on 11/3/2020) Copy to be mailed to: Wilbert K.A. Turner, Reg. No. 25352-083, MCC New York, Metropolitan Correctional Center, 150 Park Row, New York, NY 10007. (mml) Transmission to Docket Assistant Clerk for processing.
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Filing
89
ORDER: Plaintiff is advised to follow the procedures of his institution concerning the submission of grievances. To the extent Plaintiff wishes to pursue a separate legal action arising out of the MCC's allegedly improper opening of his legal ma il, he is advised to contact the Court's pro se intake unit, at: United States District Court of the Southern District of New York, Pro Se Intake Unit, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, Room 200, New York, NY 10007. And as set forth herein. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/14/2020) Copies Mailed By Chambers. (ama)
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Filing
85
ORDER: Pursuant to FRCP 41(a)(2), Plaintiff's request to dismiss claims against Defendants Chief John Fontaneau, Captain Richard Conklin, Detective Robinson, Detective Connolly, and Police Officer Vidal is granted and his claims against those de fendants are hereby dismissed without prejudice. With regard to Plaintiff's request for a default judgment against Defendant Grant, Plaintiff has not filed a Certificate of Service confirming that Defendant Grant was properly served with the Com plaint, nor has he obtained a Certificate of Default from the Clerk of Court. Therefore, Plaintiff's request for a default judgment against Defendant Grant is denied. And as set forth herein. SO ORDERED., Connoly, Det. Connoly, Det. Robinson, John Fontaneau, John Fontaneau, P.O. Vidal, Vidal, Richard Conklin and Richard Conklin terminated. (Signed by Judge Laura Taylor Swain on 2/25/2020) Filed In Associated Cases: 1:18-cv-01973-LTS-GWG, 1:19-cv-06529-LTS-GWG Copies Mailed By Chambers. (ama)
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Filing
81
ORDER: On January 22, 2020, the Court received a letter from pro se Plaintiff Wilbert K.A. Turner. (See Docket Entry No. 80.) In his letter, Mr. Turner requests the Court to verify Defendant Casey's signature on a form and ascertain the meaning behind a number beside the signature. As stated in the Court's Order dated January 10, 2020, discovery issues will be addressed if the case continues after the motion to dismiss has been decided. (See Docket Entry No. 79.) The Court will not entertain or respond to any further discovery requests before the motion to dismiss has been decided. SO ORDERED. (Signed by Judge Laura Taylor Swain on 1/23/2020) Copies Mailed By Chambers. (ama)
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Filing
79
ORDER: The court received the attached letter from pro se Plaintiff Wilbert K.A. Turner on January 8, 2020. The content of the letter will be considered in connection with the pending motion to dismiss Mr. Turner's complaint. With regard to his request for video surveillance footage, discovery issues will be addressed if the case continues after the motion to dismiss has been decided. SO ORDERED. (Signed by Judge Laura Taylor Swain on 1/10/2020) Filed In Associated Cases: 1:18-cv-01973-LTS-GWG, 1:19-cv-06529-LTS-GWG Copies Mailed By Chambers. (ama)
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Filing
73
ORDER: granting 61 Letter Motion to Stay. The motion to stay discovery (Docket # 61) has not been opposed by any party and is granted with respect to all discovery pending Judge Swain's disposition of the pending motions to dismiss. The parti es shall report to the Court within 14 days of issuance of Judge Swain's decisions on the motion to dismiss and discovery will resume at that time. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 12/13/2019) Copies Sent By Chambers. (ama)
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