Rahman v. Schriro et al
| Esteban Herrera, Sean Smith, Malik Rahman, Nicholas Florio, Ronald Ulysee, Charlie Ramos, Mario Valdiviezo, Keith Campbell, Lexie Peak, Brandon Banks, Hirving Ayala, Jr., Franklin William Gomez, Franklin Gomez, Adam M. Amsel, Clarence Douglas Elder, Jr., Prince A. Milliner, Bryan Keith McClary, Anton Smith, Walter Dais, Dwayne Nathaniel Davis, Jr., Jamel Purnell, Isaac Middleton, Henry Morel, Nathaniel Urena, Feroz Khan, Jaquan Watson, Dennis Berry, Darren Smith, Juan Bannister, Gregory J. Graham, Angel Hernandez, Jorge Luis Reyes, Lorell Purdie, Carlos Monoz, Anthony Cooke, Jimmy FanFan, Edwin Santiago, Jose Valentin, Laurence P. Kearns, Jose Colon, Michael White, Miguel Adrian-Reyes, Francisco Serrano, John Hughes, Kenneth Davis, Steven Herrera, Arnold Diaz, Ezra Woods, Jamel Clark, Jovanny Aracena, Terrell Aiken, Hakeem Smith, Christopher Daniels, Christopher P. Fusco, Shawn Smith, Michael Science Brown, Walter Peterson, Anthony Diaz, Andy Petithomme, Mayko Morena, Luis A. Victor, James Mills, Orlando Diaz, Bryan Reyes, Sean Pessoa, Hilliard Jackie, Ricardo Lazala, Melvin Butler, Jamal Hunter, Ruben DeJesus, Melvin Davis, Velair Strachon, William Quinones, William Garcia, William Rivera, Carlos Flores, Enrico Caprioni, Westley Capel, Mark A. White, Anthony Yates, Oscar Bejar, Craig Witter, Luis Robles, Hector Rodriguez, Steve Dow, David Eisbey, Romaine Ceasar, Jose Sanchez, Ralph Dana Cote, Jaquan Deas, Julio Villareal, Jaquan Baker, Anthony Musacchia, Robert Adrian, Christopher Brown, Jovan Ortiz, Jamel Ellison, Eric Plock, Willie L. Jones, Terry Williams, Russell Jacob, Bernard J. Coleman, Johnny Ramos, Claudio Nicolich, John Gonzalez, Marquis Middleton, Carl Francois, Shahid Smith and Aaron Kellar |
| Commissioner Dora Schriro, Warden Luis Rivera, Deputy Warden Russo, Pervus, Captain Lee, Captain Levy, Officer Othman, Rikers Island Detention Center, New York State Department of Corrections, V.C.B.C., Manhattan Detention Center, Rikers Island Prison, R.N.O.C C-74, O.B.CC Box, A.M.K.C. C-95, A.R.D.C. C-73, John Doe, The Department of Correction, John Doe Correctional Officer who worked the 7am-3pm at MDC, John Doe Correctional Officer who worked the 7am-3pm at GMDC, Department of Corrections, R.N.D.C.- C-74, O.B.C.C. North Facility, Dupt. Jennings, G.M.D.C.- C-73, Department of Corrections in the State of New York, C-95, C-74, Department of Corrections of New York City (DOC), New York State Department of Corrections and Community Supervision, Community Supervision, NYSDOCCS, N.Y.C. Department of Corrections, Kevin Stuart, Captain John Doe and C.O. John Doe |
| 7:2013cv06095 |
| August 28, 2013 |
| US District Court for the Southern District of New York |
| White Plains Office |
| Queens |
| Paul E Davison |
| Cathy Seibel |
| Prisoner: Prison Condition |
| 42 U.S.C. § 1983 Prisoner Civil Rights |
| None |
Docket Report
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This docket was last retrieved on September 30, 2016. A more recent docket listing may be available from PACER.
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Received returned mail re: #184 Order. Mail was addressed to Francisco Serrano 13R2358 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 and was returned for the following reason(s): Released. (ca)
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Received returned mail re: #184 Order. Mail was addressed to Robert Adrian 349-11-08179 Manhattan Detention Complex 100 Centre St. New York, NY 11013 and was returned for the following reason(s): DISCHARGED. (ca)
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Received returned mail re: #184 Order. Mail was addressed to Hilliard Jackie 14R1063 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Walter Dais 13R1910 Odgensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Prince A. Milliner 12R3683 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669-2288 *** Angel Hernandez 14A1308 Attica Correctional Facility Attica, NY 14011 Jamel Ellison 13R1201 Ogdensburg Correctional Facility Ogdensburg, NY 13669 *** Jaquan Deas Jaquan Deas 13R2135 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Jovanny Aracena 14R0855 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Bryan Keith McClary 14-A-1530 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Melvin Davis 13R0206 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Michael Science Brown 13R0091 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Adam M. Amsel 14R0896 One Correction Way Ogdensburg, NY 13669 *** Christopher P. Fusco 11-A-4987 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Juan Bannister 14R0784 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Anthony Cooke 11R2768 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669 *** Julio Villareal 12R1347 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Anthony Musacchia 14R1712 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Bernard J. Coleman 12A5438 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Christopher Brown 6707960N Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669*** and was returned for the following reason(s): Released. (ca)
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Received returned mail re: #184 Order. Mail was addressed to Nicholas Florio 05-A-1651 Downstate Correctional Facility P. O. Box F Red Schoolhouse Road Fishkill, NY 12524-0445 and was returned for the following reason(s): DISCHARGED. (ca)
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Mailed a copy of #184 Order, to all plaintiffs listed on docket. (ca)
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Filing 184
ORDER: All member cases in this consolidated action have been resolved. Accordingly, the Clerk of Court is respectfully directed to close the lead case, Rahman v. Schriro et al., 13-cv-6095. SO ORDERED. (Signed by Judge Cathy Seibel on 9/6/16) (yv)
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Transmission to Docket Assistant Clerk. Transmitted re: #184 Order, to the Docket Assistant Clerk for case processing. (yv)
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Filing 183
NOTICE OF APPEARANCE by Carolyn Elizabeth Kruk on behalf of Luis Rivera, Dora Schriro. (Kruk, Carolyn)
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Received returned mail re: #182 Clerk's Judgment, #181 Order on Motion for Summary Judgment. Mail was addressed to Marquis Middleton 12A5138 Fishkill Correctional Facility P.O. Box 1254 Beacon, NY 12508-0307 and was returned for the following reason(s): Released 01/14/2016. (ca)
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Filing 182
CLERK'S JUDGMENT: That for the reasons stated in the Court's Decision and Order dated May 31, 2016, Defendants' motions for summary judgment in 15-CV-2094 and 15-CV-5318 are granted and these cases are closed. (Signed by Clerk of Court Ruby Krajick on 5/31/2016) (Attachments: #1 Notice of Right to Appeal, #2 Notice of Right to Appeal)Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-02094-CS, 7:15-cv-05318-CS(dt)
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Filing 181
DECISION & ORDER in case 7:13-cv-06095-CS-PED; granting (32) Motion for Summary Judgment in case 7:15-cv-02094-CS; granting (18) Motion for Summary Judgment in case 7:15-cv-05318-CS. The Defendants' motions for summary judgement are GRANTED. The Clerk of Court is respectfully directed to terminate the pending motions, (15-CV-2094, Doc. 32; 15-CV-5318, Doc. 18), enter judgment for Defendants, and close each of the above-captioned cases. SO ORDERED. (Signed by Judge Cathy Seibel on 5/31/16) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-02094-CS, 7:15-cv-05318-CS (yv)
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Transmission to Judgments and Orders Clerk. Transmitted re: (28 in 7:15-cv-05318-CS, 28 in 7:15-cv-05318-CS, 181 in 7:13-cv-06095-CS-PED, 181 in 7:13-cv-06095-CS-PED, 39 in 7:15-cv-02094-CS, 39 in 7:15-cv-02094-CS) Order on Motion for Summary Judgment, to the Judgments and Orders Clerk. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-02094-CS, 7:15-cv-05318-CS(yv)
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MEMORANDUM TO THE DOCKET CLERK: Motion Doc. No. 172 should be term'd, as it was dealt with by the Court via Judge Seibel's Memo Endorsement Doc. No. 174. (lnl)
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Filing 180
ORDER: Defendants have responded that they do not object to proceeding with limited discovery in the manner described in the Rahman Opinion. (See, Doc. 14 at 2.) Plaintiff Smith has not filed a response and his deadline for doing so has now passed. Therefore, the Court orders the parties in the above-captioned member case to engage in a sixty-day period of discovery limited to the issue of whether the radiation dose emitted by the SecurPass presents a substantial risk of serious harm to Plaintiff's future health. At the close of that discovery period, Defendants may make a motion for summary judgment. If any part of the case remains viable following that summary judgment motion, the parties shall have the ability to conduct full discovery (under the supervision of Magistrate Judge Davison). The schedule is as follows: 1. Limited discovery to be completed by December 12, 2015. 2. Defendants' motion for summary judgment to be filed by January 11, 2016. 3. Plaintiff's opposition to be filed by February 11, 2016. 4. Defendants' reply to be filed by February 25, 2016.The Clerk of Court is respectfully directed to docket this Order in the lead case and in the case listed in the caption. (Limited Discovery due by 12/12/2015. Motions due by 1/11/2016. Responses due by 2/11/2016. Replies due by 2/25/2016.) (Signed by Judge Cathy Seibel on 10/13/2015) (mml)
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Transmission to Docket Assistant Clerk. Transmitted re: (16 in 7:15-cv-05318-CS, 16 in 7:15-cv-05318-CS, 180 in 7:13-cv-06095-CS-PED, 180 in 7:13-cv-06095-CS-PED) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05318-CS. (mml)
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Mailed notice of Right to Appeal re: #179 Clerk's Judgment, to Aaron Kellar 14-R-0027 Bare Hill Correctional Facility Caller Box 20 181 Brand Road Malone, NY 12953. (ca)
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Filing 179
CLERK'S JUDGMENT: It is, ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Dismissal Order dated September 29, 2015, the complaint in the above-listed case is dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. The Court certifies, pursuant to 28 U.S.C. 1915(a)(3), that any appeal from the Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 09/30/2015) (Attachments: #1 Right to Appeal, #2 Right to Appeal)Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05967-CS The Clerks Office Has Mailed Copies. (km)
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Transmission to Docket Assistant Clerk. Transmitted re: (11 in 7:15-cv-05967-CS) Clerk's Judgment to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05967-CS(km)
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Mailed a copy of #178 Order of Dismissal, to Aaron Kellar 14-R-0027 Bare Hill Correctional Facility Caller Box 20 181 Brand Road Malone, NY 12953. (ca)
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Filing 178
DISMISSAL ORDER: Complaint in the above-listed case is DISMISSED under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and the member case listed above, close the above-listed member case, and mail a copy of this Order to Plaintiff Kellar. Copies of the unreported cases cited in this Order will be mailed to Plaintiff by my chambers. 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, 444-45 (1962). SO ORDERED. (See ORDER as set forth) (Signed by Judge Cathy Seibel on 9/29/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05967-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: #178 Dismissal Order, to the Docket Assistant Clerk for case processing. (lnl)
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Mailed a copy of #177 Order to Show Cause, to Shahid Smith 13-A-5549 Upstate Correctional Facility P.O. Box 2000 309 Barehill Road Malone, NY 12953. (ca)
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Filing 177
ORDER TO SHOW CAUSE: Therefore, the parties in the case listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendants, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health, to be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining at this time many separate Motions to Dismiss regarding allegedindividualized deficiencies in each Complaint in this consolidated action. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to Plaintiff. (Signed by Judge Cathy Seibel on 9/1/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05318-CS(rj)
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Transmission to Docket Assistant Clerk. Transmitted re: (12 in 7:15-cv-05318-CS) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05318-CS(rj)
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Filing 176
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed case, Plaintiff did not specify how frequently he is scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaint in the above-listed case, while providing several dates on which the events giving rise to Plaintiff's claims occurred, (see 15-CV-5967, Doc. 3 at 2), did not specify how frequently Plaintiff is subjected to scans. Plaintiff does not allege, as is necessary to state a plausible claim, that he is required to submit to SecurPass scans with any substantial frequency, or that he has already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, this Complaint also fails to state a claim on which relief can be granted. Therefore, the Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. If Plaintiff believes in good faith, after reading the Middleton Opinion, that he can state a claim by providing more detailed factual allegations may explain in his response what facts he would add in an Amended Complaint. If Plaintiff fails to file a timely response to this Order his case will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in the case listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to the above-listed Plaintiff. SO ORDERED. (Signed by Judge Cathy Seibel on 8/18/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05967-CS (lnl)
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Filing 175
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above-listed case is hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in the case listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 8/18/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05967-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (176 in 7:13-cv-06095-CS-PED, 6 in 7:15-cv-05967-CS) Order to Show Cause, (175 in 7:13-cv-06095-CS-PED, 5 in 7:15-cv-05967-CS) Consolidation Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05967-CS (lnl)
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Mailed a copy of #57 Declaration in Support of Motion, #174 Memo Endorsement, to Marquis Middleton 12A5138 Fishkill Correctional Facility 271 Matteawan Road P.O. Box 1254 Beacon, NY 12508-0307. (ca)
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Filing 174
MEMO ENDORSEMENT on re: (21 in 7:15-cv-02094-CS) Affidavit in Support of Motion filed by Marquis Middleton, (173 in 7:13-cv-06095-CS-PED) Affidavit in Support of Motion filed by Marquis Middleton. ENDORSEMENT: The Clerk of Court is respectfully directed to send Plaintiff a copy of Doc. 57 (with exhibits) in 13-cv-6095. This document includes a copy of what the Plaintiff in the lead case provided as discovery. The Court is providing this as a courtesy, and Plaintiff should not construe it as an indication that he can rely on this document alone in moving for summary judgment, or that discovery other than his own would be considered on such a motion. SO ORDERED. (Signed by Judge Cathy Seibel on 8/7/2015) (mml)
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Transmission to Docket Assistant Clerk. Transmitted re: (174 in 7:13-cv-06095-CS-PED, 22 in 7:15-cv-02094-CS) Memo Endorsement to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-02094-CS. (mml)
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Filing 173
(Affidavit)AFFIRMATION IN SUPPORT OF MOTION TO ADOPT OR EXTEND; re: #172 MOTION for Discovery. Document filed by Marquis Middleton. (sc)
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Filing 172
NOTICE OF MOTION; re: for an order allowing the plaintiff to adopt any limited discovery demands which may be filed by the plaintiff in the lead case(13-cv-6095; or in the alternative, to grant the plaintiff an extension of time in which to file his limited discovery. Document filed by Marquis Middleton.(sc)
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Filing 171
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed case, Plaintiff provides no details as to how frequently he is scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaint in the above-listed case contains no information as to how frequently Plaintiff is subjected to scans. Plaintiff does not allege, as is necessary to state a plausible claim, that he is required to submit to SecurPass scans with any substantial frequency, or that he has already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, this Complaint also fails to state a claim on which relief can be granted. Therefore, the Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. If Plaintiff believes in good faith, after reading the Middleton Opinion, that he can state a claim by providing more detailed factual allegations may explain in his response what facts he would add in an Amended Complaint. If Plaintiff fails to file a timely response to this Order his case will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in the case listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to the above-listed Plaintiff. SO ORDERED. (Signed by Judge Cathy Seibel on 7/28/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05318-CS Copies Mailed By Chambers. (lnl)
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Filing 170
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above-listed case is hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in the case listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 7/28/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05318-CS (lnl)
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Mailed a copy of #170 Order, to Shahid Smith 13-A-5549 Upstate Correctional Facility P.O. Box 2000 309 Barehill Road Malone, NY 12953. (ca)
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Transmission to Docket Assistant Clerk. Transmitted re: (7 in 7:15-cv-05318-CS, 170 in 7:13-cv-06095-CS-PED) Consolidation Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-05318-CS (lnl)
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Filing 169
CLERK'S JUDGMENT: That for the reasons stated in the Court's Decision and Order dated July 20, 2015, Defendants' motions for summary judgment are granted, and judgment is hereby entered in favor of defendants' in the following cases 14-cv6856, 14-cv-7383, 14-cv-8517, and 14-cv-9236; accordingly, these cases are closed. (Signed by Clerk of Court Ruby Krajick on 7/22/2015) (Attachments: #1 Notice of Right to Appeal, #2 Notice of Right to Appeal)Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS, 7:14-cv-07383-CS, 7:14-cv-08517-CS, 7:14-cv-09236-CS(dt)
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Mailed notice of Right to Appeal re: #169 Clerk's Judgment,, #168 Order on Motion for Summary Judgment, to Jovan Ortiz 14R0513 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Jaquan Baker DIN# 14R1522 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Keith Stuart 14A3616 Franklin Correctional Facility 162 Bare Hill Road PO Box 10 Malone, NY 12953 *** Carl Jenkins 14-A-4523 Franklin Correctional Facility 62 Bare Hill Road P.O. Box 10 Malone, New York 12953-0010. (ca)
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Filing 168
ORDER in case 7:13-cv-06095-CS-PED; granting (15) Motion for Summary Judgment in case 7:14-cv-06856-CS; granting (14) Motion for Summary Judgment in case 7:14-cv-07383-CS; granting (14) Motion for Summary Judgment in case 7:14-cv-08517-CS; granting (14) Motion for Summary Judgment in case 7:14-cv-09236-CS.For the reasons stated above, Defendants' motions for summary judgment are GRANTED. The Clerk of Court is respectfully directed to terminate the pending motions, (14-CV-6856, Doc. 15; 14-CV-7383, Doc. 14; 14-CV-8517, Doc. 14; 14-CV-9236, Doc. 14), enter judgment for Defendants, and close each of the above-captioned cases. (Signed by Judge Cathy Seibel on 7/20/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS, 7:14-cv-07383-CS, 7:14-cv-08517-CS, 7:14-cv-09236-CS (rj)
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Transmission to Judgments and Orders Clerk. Transmitted re: (21 in 7:14-cv-09236-CS, 21 in 7:14-cv-09236-CS, 21 in 7:14-cv-09236-CS, 21 in 7:14-cv-09236-CS) Order on Motion for Summary Judgment, to the Judgments and Orders Clerk. Transmission to Docket Assistant Clerk. Transmitted re: (21 in 7:14-cv-09236-CS, 21 in 7:14-cv-09236-CS, 21 in 7:14-cv-09236-CS, 21 in 7:14-cv-09236-CS) Order on Motion for Summary Judgment,to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS, 7:14-cv-07383-CS, 7:14-cv-08517-CS, 7:14-cv-09236-CS(rj)
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Pro Se Payment of Fee $132.30Processed: Money Order processed by the Finance Department on 7/8/2015, Receipt Number 465401129732. (ew)
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Filing 167
ORDER: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass x-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. The parties in the above-listed member case were ordered to show cause (see 15-CV-2094, Doc. 9) why these cases should not proceed in the manner described in the Courts May 27, 2014 Opinion and Order in the lead case, Rahman v. Schriro, (13-CV-6095, Doc. 27 ("Rahman Opinion")) that is, why the Court should not order a sixty-day period of limited discovery solely on the potentially dispositive issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmates future health. This discovery period would be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Defendants have responded that they do not object to proceeding with limited discovery in the manner described in the Rahman Opinion. (See 15-CV-2094, Doc. 15 at 2.) Plaintiff Middleton has not filed a response and his deadline for doing so has now passed. Therefore, the Court orders the parties in the above-captioned member case to engage in a sixty-day period of discovery limited to the issue of whether the radiation dose emitted by the SecurPass presents a substantial risk of serious harm to Plaintiffs future health. At the close of that discovery period, Defendants may make a motion for summary judgment. If any part of the case remains viable following that summary judgment motion, the parties shall have the ability to conduct full discovery (under the supervision of Magistrate Judge Davison). The schedule is as follows: 1. Limited discovery to be completed by August 14, 2015. 2. Defendants' motion for summary judgment to be filed by September 13, 2015. 3. Plaintiff's opposition to be filed by October 13, 2015. 4. Defendants' reply to be filed by October 27, 2015. The Clerk of Court is respectfully directed to docket this Order in the lead case and in each of the cases listed in the caption. SO ORDERED. (Limited Discovery due by 8/14/2015. Motions due by 9/13/2015. Responses due by 10/13/2015. Replies due by 10/27/2015.) (Signed by Judge Cathy Seibel on 6/15/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-02094-CS (lnl)
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Filing 166
DISMISSAL ORDER: The Court therefore finds that amending the Complaint would be futile and declines to grant Plaintiff Francois leave to do so on its own motion. Accordingly, the Complaint in the above-listed case is DISMISSED under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and the member case listed above, close the above-listed member case, and mail a copy of this Order to Plaintiff Francois. Copies of the unreported cases cited in this Order will be mailed to Plaintiff by my chambers. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 6/15/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09935-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (167 in 7:13-cv-06095-CS-PED, 167 in 7:13-cv-06095-CS-PED, 16 in 7:15-cv-02094-CS, 16 in 7:15-cv-02094-CS) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-02094-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (166 in 7:13-cv-06095-CS-PED, 11 in 7:14-cv-09935-CS) Order of Dismissal, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09935-CS(lnl)
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Received returned mail re: (22 in 7:14-cv-05994-CS, 22 in 7:14-cv-05994-CS, 22 in 7:14-cv-05994-CS, 22 in 7:14-cv-05994-CS) Order on Motion for Summary Judgment. Mail was addressed to Juan Bannister of Juan Bannister at 14R0784 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 and was returned for the following reason(s): Not Here. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05994-CS (lnl)
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Filing 165
DECLARATION OF JOVAN ORTIZ, IN OPPOSITION OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND PRODUCTION OF DOCUMENTS. Document filed by Jovan Ortiz. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS(lnl)
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Filing 164
DECISION & ORDER in case 7:13-cv-06095-CS-PED; granting (20) Motion for Summary Judgment in case 7:14-cv-00843-CS; granting (19) Motion for Summary Judgment in case 7:14-cv-04855-CS; granting (16) Motion for Summary Judgment in case 7:14-cv-05994-CS; granting (14) Motion for Summary Judgment in case 7:14-cv-06161-CS: Defendants' motions for summary judgment are GRANTED. The Clerk of Court is respectfully directed to terminate the pending motions, (14-CV-843, Doc. 20; 14-CV-4855, Doc. 19; 14-CV-5994, Doc. 16; 14-CV-6161, Doc. 14), enter judgment for Defendants, and close each of the above-captioned cases. SO ORDERED. (Signed by Judge Cathy Seibel on 4/27/2015) (See DECISION & ORDER as set forth) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-00843-CS, 7:14-cv-04855-CS, 7:14-cv-05994-CS, 7:14-cv-06161-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (22 in 7:14-cv-05994-CS, 20 in 7:14-cv-06161-CS, 164 in 7:13-cv-06095-CS-PED, 25 in 7:14-cv-04855-CS, 32 in 7:14-cv-00843-CS) DECISION & ORDER, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-00843-CS, 7:14-cv-04855-CS, 7:14-cv-05994-CS, 7:14-cv-06161-CS (lnl)
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Transmission to Judgments and Orders Clerk. Transmitted re: (22 in 7:14-cv-05994-CS, 164 in 7:13-cv-06095-CS-PED, 32 in 7:14-cv-00843-CS, 20 in 7:14-cv-06161-CS, 25 in 7:14-cv-04855-CS) DECISION & ORDER, to the Judgments and Orders Clerk. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-00843-CS, 7:14-cv-04855-CS, 7:14-cv-05994-CS, 7:14-cv-06161-CS (lnl)
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Filing 163
ORDER TO SHOW CAUSE: The Complaint in the above-listed case includes allegations similar to those in the Middleton case namely, it suggests that Plaintiff was forced to undergo a small number of SecurPass scans on court days. Plaintiff does not allege, as is necessary to state a plausible claim, that he was required to submit to SecurPass scans with any substantial frequency, or that he was subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, this Complaint also fails to state a claim on which relief can be granted. Therefore, the Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. If Plaintiff believes in good faith, after reading the Middleton Opinion, that he can state a claim by providing more detailed factual allegations, he may explain in his response what facts he would add in an Amended Complaint. If Plaintiff fails to file a timely response to this Order, his case will be dismissed for the reasons set forth in the Middleton Opinion. The dismissal order dated February 20, 2015, (14-CV-9935, Doc. 8), is hereby VACATED. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in the case listed in the caption, and to re-open the latter case. The Clerk of Court is also respectfully directed to update Plaintiff's address as set forth in his recent letter to the Court. (Doc. 9.) Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to Plaintiff. SO ORDERED. (Signed by Judge Cathy Seibel on 4/27/2015) (See ORDER TO SHOW CAUSE as set forth) (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: #163 Order to Show Cause, to the Docket Assistant Clerk for case processing. (lnl)
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Filing 162
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed case, Plaintiff alleges that he was scanned three times a day for approximately five months. (See 15-CV-2094, Doc. 2 at 2.) To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated May 27, 2014, I denied (in relevant part) a Motion to Dismiss in Rahman v. Schriro, No. 13-CV-6095, the lead case in this consolidated action. (See 13-CV-6095 Doc. 27.) That Opinion (the "Rahman Opinion") held based on the limited factual information of which judicial notice may be taken in connection with a Motion to Dismiss that allegations that an inmate is subjected to multiple SecurPass scans on a daily basis "suggest with sufficient plausibility that Plaintiff may be able to demonstrate through discovery that a serious present injury or a future risk of serious injury exists." (Rahman Opinion at 10 (internal quotation marks and citation omitted).) The Rahman Opinion observed, however, that according to information published by the SecurPass manufacturer (which was submitted by Defendants but which I excluded for purposes of the Motion to Dismiss), it appeared that the SecurPass system does not in fact emit dangerous levels of radiation, even if an individual is scanned thousands of times per year. (See id. at 18 and n.4.) Because that issue was potentially dispositive, I therefore ordered the parties to engage in a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmates future health. (Id.) At the close of that period, Defendants could make a Motion for Summary Judgment, and if any part of the case survived that Motion, full discovery would be ordered. (Id.) The complaint in the above-listed case includes allegations similar to those in the Rahman case: namely, that Plaintiffs is subjected to SecurPass scans on a frequent and recurring basis. It appears to the Court that under the governing law and the analysis laid out in the Rahman Opinion, this Complaint would not be subject to dismissal on the basis that it fails to allege an objectively sufficiently serious risk to Plaintiff's health. Therefore, the parties in the case listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendants, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health, to be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining many separate Motions to Dismiss regarding allegedindividualized deficiencies in each Complaint. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in member case listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to Plaintiff in the case to which this Order applies.SO ORDERED. (Signed by Judge Cathy Seibel on 4/22/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-02094-CS (lnl)
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Filing 161
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above-listed case is hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in the case listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 4/22/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-02094-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: #162 Order to Show Cause and #161 Consolidation Order, to the Docket Assistant Clerk for case processing. (lnl)
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Filing 160
INTERNET CITATION NOTE: Material from decision with Internet citation re: #33 Memorandum & Opinion. (vf)
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Received returned mail Mail was addressed to Malik Rahman c/o Samantha Harris at 1400 East New York Ave., Brooklyn, N.Y., 11212 and was returned for the following reason(s): Insufficient Address - Unable to Forward. (Clark, Walter)
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Mailed a copy of #159 Order of Dismissal, to Claudio Nicolich 14R1067 Mid-State Correctional Facility P.O. Box 2500 Marcy, N Y 13403*** John Gonzalez 87-42 Elmhurst Ave Apt #5K Jackson Hills, NY 11373 *** Johnny Ramos 13-R-2526 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669-2288. (ca)
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Filing 159
DISMISSAL ORDER: the Complaints in the above-listed cases are DISMISSED under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and each member case listed above, close the above-listed member cases, and mail a copy of this Order to each of the Plaintiffs to whom it applies. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 3/27/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09775-CS, 7:14-cv-10280-CS, 7:15-cv-00449-CS (lnl)
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Transmission to Judgments and Orders Clerk. Transmitted re: (9 in 7:14-cv-09775-CS, 8 in 7:15-cv-00449-CS, 159 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-10280-CS) Order of Dismissal, to the Judgments and Orders Clerk. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09775-CS, 7:14-cv-10280-CS, 7:15-cv-00449-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (9 in 7:14-cv-09775-CS, 8 in 7:15-cv-00449-CS, 159 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-10280-CS) Order of Dismissal, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09775-CS, 7:14-cv-10280-CS, 7:15-cv-00449-CS(lnl)
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Received returned mail re: #157 Order on Motion for Summary Judgment. Mail was addressed to Clarence Douglas Elder, Jr. 13-R-2968 at One Correction Way, Ogdensburg, NY 13669 and was returned for the following reason(s): Undeliverable as addressed, Not Here Return to Sender (Released). (Clark, Walter)
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Received returned mail re: #158 Clerk's Judgment. Mail was addressed to Malik Rahmanc/o Samanthia Harris1400 East New York Ave.Brooklyn, NY 11212 and was returned for the following reason(s): Not deliverable as addressed - unable to forward. (ca)
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Filing 158
JUDGMENT: ORDERED, ADJUDGED AND DECREED: that for the reasons stated in the Court's Decision and Order, dated March 10, 2015, judgment is entered for the Defendants; and against Malik Rahman. (Signed by Clerk of Court Ruby Krajick on 3/13/2015) (Attachments: #1 Notice of Right to Appeal) (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: #158 Judgment as to Malik Rahman, to the Docket Assistant Clerk for case processing. (lnl)
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Mailed notice of Right to Appeal re: #158 Clerk's Judgment, to Malik Rahman c/o Samanthia Harris 1400 East New York Ave. Brooklyn, NY 11212. (ca)
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Mailed notice of Right to Appeal re: #158 Clerk's Judgment, Malik Rahmanc/o Samanthia Harris1400 East New York Ave.Brooklyn, NY 11212 ***Keith Campbellc/o Carol Campbell260 Mother Gaston Blvd.Apt. 12GBrooklyn, NY 11212 ***Lexie Peak34-25 Vernon BoulevardRoom 431Long Island City, NY 11106 ***Franklin Gomez241-12-1022509-09 Hazen StEast Elmhurst, NY 11370 ***Clarence Douglas Elder, Jr.13-R-2968One Correction WayOgdensburg, NY 13669***Carlos Monoz13R3504OgdensburgOne Correction WayOgdensburg, NY 13669 ***Jamal Hunter14R1278/980-13-00494Ogdensburg Correctional FacilityOne Correction WayOgdensburg, NY 13669 ***. (ca)
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Filing 157
DECISION & ORDER granting (54) Motion for Summary Judgment in case 7:13-cv-06095-CS-PED; granting (26) Motion for Summary Judgment in case 7:14-cv-00849-CS; granting (19) Motion for Summary Judgment in case 7:14-cv-03197-CS; granting (15) Motion for Summary Judgment in case 7:14-cv-04874-CS; granting (15) Motion for Summary Judgment in case 7:14-cv-05523-CS; granting (16) Motion for Summary Judgment in case 7:14-cv-05992-CS; granting (11) Motion for Summary Judgment in case 7:14-cv-07163-CS: Defendants' motions for summary judgment are GRANTED. The Clerk of Court is respectfully directed to terminate the pending motions, (13-CV-6095, Doc. 54; 14-CV-849, Doc. 26; 14-CV-3197, Doc. 19; 14-CV-4874, Doc. 15; 14-CV-5523, Doc. 15; 14-CV-5992, Doc. 16; 14-CV-7163, Doc. 11), enter judgment for Defendants, and close each of the above-captioned cases. SO ORDERED. (Signed by Judge Cathy Seibel on 3/10/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Transmission to Judgments and Orders Clerk. Transmitted re: (23 in 7:14-cv-05992-CS, 34 in 7:14-cv-00849-CS, 21 in 7:14-cv-04874-CS, 21 in 7:14-cv-05523-CS, 17 in 7:14-cv-07163-CS, 157 in 7:13-cv-06095-CS-PED, 25 in 7:14-cv-03197-CS) DECISION & ORDER, to the Judgments and Orders Clerk. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (23 in 7:14-cv-05992-CS, 34 in 7:14-cv-00849-CS, 21 in 7:14-cv-04874-CS, 21 in 7:14-cv-05523-CS, 17 in 7:14-cv-07163-CS, 06095-CS-PED, 157, 25 in 7:14-cv-03197-CS) DECISION AND ORDER, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Mailed a copy of #157 Order on Motion for Summary Judgment, to Malik Rahman c/o Samanthia Harris 1400 East New York Ave. Brooklyn, NY 11212 *** Keith Campbell c/o Carol Campbell 260 Mother Gaston Blvd. Apt. 12G Brooklyn, NY 11212 *** Lexie Peak 34-25 Vernon Boulevard Room 431 Long Island City, NY 11106 *** Franklin Gomez 241-12-10225 09-09 Hazen St East Elmhurst, NY 11370 *** Clarence Douglas Elder, Jr. 13-R-2968 One Correction Way Ogdensburg, NY 13669*** Carlos Monoz 13R3504 Ogdensburg One Correction Way Ogdensburg, NY 13669 *** Jamal Hunter 14R1278/980-13-00494 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Filing 156
LETTER addressed to Judge Cathy Seibel from Johnny Ramos, DIN #13R2526, re: Nonparty Johnny Ramos informs the Court that the Court has taken $24.10 from his inmate account for his filing of a claim against the State; and he is interested to find out if there is any sort of timetable in which he can expect to hear of a result in this matter. (sc)
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Filing 155
ORDER: In conclusion, because Plaintiffs have not stated any reason that their cases should not proceed in the manner outlined in Rahman, the Court orders the parties in the above-captioned member case to engage in a sixty-day period of discovery limited to the issue of whether the radiation dose emitted by the SecurPass presents a substantial risk of serious harm to Plaintiffs' future health. At the close of that discovery period, Defendants may make a motion for summary judgment. If any part of the case remains viable following that summary judgment motion, the parties shall have the ability to conduct full discovery (under the supervision of Magistrate Judge Davison). The schedule is as follows: 1. Limited discovery to be completed by April 19, 2015. 2. Defendants' motion for summary judgment to be filed by May 19, 2015. 3. Plaintiff's opposition to be filed by June 18, 2015. 4. Defendants' reply to be filed by July 2, 2015. The Clerk of Court is respectfully directed to docket this Order in the lead case and in each of the cases listed in the caption. SO ORDERED. (Limited Discovery due by 4/19/2015. Motion for Summary Judgment due by 5/19/2015. Oppositions due by 6/18/2015. Replies due by 7/2/2015.) (Signed by Judge Cathy Seibel on 2/20/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS, 7:14-cv-07383-CS, 7:14-cv-08517-CS, 7:14-cv-09236-CS(lnl)
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Filing 154
DISMISSAL ORDER: the Complaints in the above-listed cases are DISMISSED under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and each member case listed above, close the above-listed member cases, and mail a copy of this Order to each of the Plaintiffs to whom it applies. Copies of the unpublished cases cited herein not previously provided will be mailed to Plaintiffs from Chambers. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 2/20/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09316-CS, 7:14-cv-09935-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (154 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-09316-CS, 8 in 7:14-cv-09935-CS) Order of Dismissal, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09316-CS, 7:14-cv-09935-CS (lnl)
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Mailed a copy of #155 Order, Set Deadlines/Hearings, to Jovan Ortiz 14R0513 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Jaquan Baker DIN# 14R1522 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 ***Keith Stuart 14A3616 Franklin Correctional Facility 162 Bare Hill Road PO Box 10 Malone, NY 12953 *** Carl Jenkins 441-12-00923 Downstate Correctional Facility Box- 7 Red School House Road Fishkill, NY 12524. (ca)
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Mailed a copy of #154 Order of Dismissal, to Pedro Ramos 13-R-3506 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 and to Carl Francois 8751300077 Anna M. Kross Correctional Facility 18-18 Hazen Street East Elmhurst, NY 11370. (ca)
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Transmission to Docket Assistant Clerk. Transmitted re: (13 in 7:14-cv-08517-CS, 13 in 7:14-cv-08517-CS, 13 in 7:14-cv-07383-CS, 13 in 7:14-cv-07383-CS, 13 in 7:14-cv-09236-CS, 13 in 7:14-cv-09236-CS, 13 in 7:14-cv-06856-CS, 13 in 7:14-cv-06856-CS, 155 in 7:13-cv-06095-CS-PED, 155 in 7:13-cv-06095-CS-PED) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS, 7:14-cv-07383-CS, 7:14-cv-08517-CS, 7:14-cv-09236-CS (lnl)
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Filing 153
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed case, Plaintiff provides no details as to how frequently he is scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaint in the above-listed case contains no information as to how frequently Plaintiff is subjected to scans. Plaintiff does not allege, as is necessary to state a plausible claim, that he is required to submit to SecurPass scans with any substantial frequency, or that he has already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, this Complaint also fails to state a claim on which relief can be granted. Therefore, the Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. If Plaintiff believes in good faith, after reading the Middleton Opinion, that he can state a claim by providing more detailed factual allegations may explain in his response what facts he would add in an Amended Complaint. If Plaintiff fails to file a timely response to this Order his case will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in the case listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to the above-listed Plaintiff. SO ORDERED. (Signed by Judge Cathy Seibel on 2/19/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-00449-CS(lnl)
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Filing 152
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed case is hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in the case listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 2/19/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-00449-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (152 in 7:13-cv-06095-CS-PED, 6 in 7:15-cv-00449-CS) Consolidation Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-00449-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (153 in 7:13-cv-06095-CS-PED, 7 in 7:15-cv-00449-CS) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:15-cv-00449-CS(lnl)
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Mailed a copy of #153 Order to Show Cause, #152 Order, to Johnny Ramos 13-R-2526 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669-2288. (ca)
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Filing 151
Response to ORDER TO SHOW CAUSE. filed by Jaquan Baker. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-07383-CS(rdz) Modified on 2/18/2015 (rdz).
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Filing 150
RESPONSE TO ORDER TO SHOW CAUSE re: #149 Order to Show Cause. Filed by Carl Jenkins (rdz)
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Filing 149
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small number of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 1/22/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09775-CS, 7:14-cv-10280-CS(lnl) Modified on 2/10/2015 (lnl).
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Filing 148
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 1/22/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09775-CS, 7:14-cv-10280-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (6 in 7:14-cv-09775-CS, 148 in 7:13-cv-06095-CS-PED, 6 in 7:14-cv-10280-CS) Consolidation Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09775-CS, 7:14-cv-10280-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (149 in 7:13-cv-06095-CS-PED, 7 in 7:14-cv-09775-CS, 7 in 7:14-cv-10280-CS) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09775-CS, 7:14-cv-10280-CS(lnl)
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Mailed a copy of #149 Order to Show Cause, to Claudio Nicolich 14R1067 Cope Vincent Correctional Facility Route 12E P.O. Box 739 Cope Vincent, NY 13618 and to John Gonzalez 87-42 Elmhurst Ave Apt #5K Jackson Hills, NY 11373. (ca)
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Mailed a copy of #147 Order of Dismissal, to Robert Adrian 349-11-08179 Manhattan Detention Complex 100 Centre St. New York, NY 10013 *** Christopher Brown 6707960N Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Jaquan Deas 13R2135 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Hillard Jackie 14R1063 Ogdensburg Correctional Facility One Correction Way 13669*** Julio Villareal 12R1347 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669-2288 *** Jamel Ellison 13R1201 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Anthony Musacchia 14R1712 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Eric Plock 14A1551 Franklin Correctional Facility 62 Barehill Road PO Box 10 Malone, NY 12953 *** Willie L. Jones 153-22 Foch Blvd. Jamaica, NY 11434 *** Terry Williams 216 Rockaway Ave. #10-K Brooklyn, NY 11233 *** Russell Jacob 13R2800 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Bernard J. Coleman 12A5438 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Filing 147
DISMISSAL ORDER: Accordingly, the Complaints in the above-listed cases are DISMISSED under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and each member case listed above, close the above-listed member cases, and mail a copy of this Order to each of the Plaintiffs to whom it applies. Copies of the unpublished cases cited herein not previously provided will be mailed to Plaintiffs from Chambers. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 1/13/2015) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Transmission to Judgments and Orders Clerk. Transmitted re: (8 in 7:14-cv-08099-CS, 8 in 7:14-cv-07328-CS, 8 in 7:14-cv-07848-CS, 147 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-06803-CS, 8 in 7:14-cv-08777-CS, 8 in 7:14-cv-06467-CS, 11 in 7:14-cv-07385-CS, 8 in 7:14-cv-08639-CS, 9 in 7:14-cv-06600-CS, 8 in 7:14-cv-08037-CS, 10 in 7:14-cv-06921-CS, 8 in 7:14-cv-08274-CS) Order of Dismissal, to the Judgments and Orders Clerk. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (8 in 7:14-cv-08099-CS, 8 in 7:14-cv-07328-CS, 8 in 7:14-cv-07848-CS, 147 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-06803-CS, 8 in 7:14-cv-08777-CS, 8 in 7:14-cv-06467-CS, 11 in 7:14-cv-07385-CS, 8 in 7:14-cv-08639-CS, 9 in 7:14-cv-06600-CS, 8 in 7:14-cv-08037-CS, 10 in 7:14-cv-06921-CS, 8 in 7:14-cv-08274-CS) Order of Dismissal, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(lnl)
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Filing 146
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed case, Plaintiff alleges that he is scanned on a frequent and recurring basis. To establish a constitutional violation based on a claim that prison officials placed an inmates health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated May 27, 2014, I denied (in relevant part) a Motion to Dismiss in Rahman v. Schriro, No. 13-CV-6095, the lead case in this consolidated action. (See 13-CV-6095 Doc. 27.) That Opinion (the "Rahman Opinion") held based on the limited factual information of which judicial notice may be taken in connection with a Motion to Dismiss that allegations that an inmate is subjected to multiple SecurPass scans on a daily basis "suggest with sufficient plausibility that Plaintiff may be able to demonstrate through discovery that a serious present injury or a future risk of serious injury exists." (Rahman Opinion at 10 (internal quotation marks and citation omitted).) The Rahman Opinion observed, however, that according to information published by the SecurPass manufacturer (which was submitted by Defendants but which I excluded for purposes of the Motion to Dismiss), it appeared that the SecurPass system does not in fact emit dangerous levels of radiation, even if an individual is scanned thousands of times per year. (See id. at 18 and n.4.) Because that issue was potentially dispositive, I therefore ordered the parties to engage in a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. (Id.) At the close of that period, Defendants could make a Motion for Summary Judgment, and if any part of the case survived that Motion, full discovery would be ordered. (Id.) The complaint in the above-listed case includes allegations similar to those in the Rahman case: namely, that Plaintiff is subjected to SecurPass scans on a frequent and recurring basis. It appears to the Court that under the governing law and the analysis laid out in the Rahman Opinion, this Complaint would not be subject to dismissal on the basis that it fails to allege an objectively sufficiently serious risk to Plaintiff's health. Therefore, the parties in the case listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendant, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health, to be followed by an opportunity for Defendant to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in the case listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 12/23/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09236-CS(lnl)
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Filing 145
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small number of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 12/23/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09316-CS, 7:14-cv-09935-CS(lnl)
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Filing 144
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 12/23/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09236-CS, 7:14-cv-09316-CS, 7:14-cv-09935-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (7 in 7:14-cv-09935-CS, 7 in 7:14-cv-09316-CS, 145 in 7:13-cv-06095-CS-PED) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09316-CS, 7:14-cv-09935-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (6 in 7:14-cv-09935-CS) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09236-CS, 7:14-cv-09316-CS, 7:14-cv-09935-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (7 in 7:14-cv-09236-CS, 146 in 7:13-cv-06095-CS-PED) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-09236-CS(lnl)
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Mailed a copy of #146 Order to Show Cause, to Carl Jenkins 441-12-00923 Downstate Correctional Facility Box- 7 Red School House Road Fishkill, NY 12524. (ca)
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Filing 143
RESPONSE TO ORDER TO SHOW CAUSE re: (140 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-07383-CS) Order to Show Cause,,,,,,,,,,,,,,,,,,,,,, (8 in 7:14-cv-08517-CS, 139 in 7:13-cv-06095-CS-PED) Order to Show Cause,,,,,,,,,,,,,,,,,, (133 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-06856-CS) Order to Show Cause,,,,,,,,,,,,,,,,,,. Document filed by The City Of New York,. (Attachments: #1 Exhibit)Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS, 7:14-cv-07383-CS, 7:14-cv-08517-CS(Porter, Eric)
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Filing 142
RESPONSE TO ORDER TO SHOW CAUSE re: (133 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-06856-CS) Order to Show Cause. Document filed by Jovan Ortiz. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS(lnl)
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Mailed a copy of #141 Order of Dismissal, to Esteban Herrera 13R3014 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 James Mills 12R2509 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Bryan Reyes 13R2280 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Sean Pessoa 13R2524 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Ricardo Lazala 360-13-00146 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Craig Witter 14R0952 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Luis Robles 14R0797 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Hector Rodriguez 13R0732 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669-2288 Ruben DeJesus 12R3011 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Steve Dow 13A5225 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669-2288 David Eisbey 14R1496 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Romaine Ceasar 14R1567 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Ralph Dana Cote 14R0442 Odgensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Filing 141
DISMISSAL ORDER: Accordingly, the Complaints in the above-listed cases are DISMISSED under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and each member case listed above, close the above-listed member cases, and mail a copy of this Order to each of the Plaintiffs to whom it applies. Copies of the unpublished cases cited herein not previously provided will be mailed to Plaintiffs from Chambers. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 12/8/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (mml)
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Transmission to Docket Assistant Clerk. Transmitted re: (9 in 7:14-cv-07849-CS, 8 in 7:14-cv-07212-CS, 8 in 7:14-cv-07172-CS, 9 in 7:14-cv-06969-CS, 10 in 7:14-cv-06860-CS, 11 in 7:14-cv-06516-CS, 9 in 7:14-cv-07178-CS, 9 in 7:14-cv-06804-CS, 11 in 7:14-cv-07670-CS, 8 in 7:14-cv-07174-CS, 141 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-06863-CS, 8 in 7:14-cv-07000-CS, 9 in 7:14-cv-07219-CS) Order of Dismissal to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (mml)
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Transmission to Judgments and Orders Clerk. Transmitted re: (9 in 7:14-cv-07849-CS, 8 in 7:14-cv-07212-CS, 8 in 7:14-cv-07172-CS, 9 in 7:14-cv-06969-CS, 10 in 7:14-cv-06860-CS, 11 in 7:14-cv-06516-CS, 9 in 7:14-cv-07178-CS, 9 in 7:14-cv-06804-CS, 11 in 7:14-cv-07670-CS, 8 in 7:14-cv-07174-CS, 141 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-06863-CS, 8 in 7:14-cv-07000-CS, 9 in 7:14-cv-07219-CS) Order of Dismissal to the Judgments and Orders Clerk. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (mml)
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Filing 140
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). In the above-listed case, Plaintiff Baker's complaint provided limited information about how many times he had been scanned by a SecurPass. (14-CV-7383, Doc. 1 at 2-3.) Accordingly, the Court ordered Mr. Baker to show cause (see 14-CV-7383, Doc. 7) why his complaint should not be dismissed for failure to state a claim for the reasons discussed in the Courts August 13, 2014 Opinion and Order dismissing Middleton v. City of New York (13-CV-6095, Doc. 33 ("Middleton Opinion")) namely, that he fails to allege that he was scanned a sufficient number of times to satisfy the objective prong of the "deliberate indifference" standard governing prison condition claims. See Farmer, 511 U.S. at 834. In his response to the Order to Show Cause, Mr. Baker alleges that he was scanned on a recurring basis as a result of a daily work assignment, and that he underwent more than 80 scans in total. (See 14-CV-7383, Doc. 8 at 1-2.) As a result, this case is inappropriate for dismissal under the reasoning of the Middleton Opinion. In the lead case in this consolidated action, Rahman v. Schriro, No. 13-CV-6095, by Opinion and Order dated May 27, 2014, I denied (in relevant part) a Motion to Dismiss. (See 13-CV-6095, Doc. 27 ("Rahman Opinion").) The Rahman Opinion held based on the limited factual information of which judicial notice may be taken in connection with a motion to dismiss that allegations that an inmate is subjected to multiple SecurPass scans on a daily basis "suggest with sufficient plausibility that Plaintiff may be able to demonstrate through discovery that a serious present injury or a future risk of serious injury exists." (Id. at 10 (internal quotation marks and citation omitted).) The Rahman Opinion observed, however, that according to information published by the SecurPass manufacturer (which was submitted by Defendants but which I excluded for purposes of the Motion to Dismiss), it appeared that the SecurPass system does not in fact emit dangerous levels of radiation, even if an individual is scanned thousands of times per year. (See id. at 18 & n.4.) Because that issue was potentially dispositive, I therefore ordered the parties to engage in a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. (Id.) At the close of that period, Defendant could make a Motion for Summary Judgment, and if any part of the case survived that Motion, full discovery would be ordered. (Id.) Mr. Baker's response and complaint include allegations similar to those in the Rahman case namely, that the plaintiff is subjected to SecurPass scans on a frequent and recurring basis. It appears to the Court that under the governing law and the analysis laid out in the Rahman Opinion, Mr. Baker's claims would not be subject to dismissal on the basis that he fails to allege an objectively sufficiently serious risk to his health. It further appears to the Court that limited discovery, as in Rahman, is appropriate. Therefore, the parties in the cases listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendant, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health, to be followed by an opportunity for Defendant to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining at this time many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint in this consolidated action. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to Plaintiff. SO ORDERED. (Signed by Judge Cathy Seibel on 12/8/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-07383-CS(lnl)
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Filing 139
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed case, Plaintiff alleges that he is scanned on a frequent and recurring basis. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated May 27, 2014, I denied (in relevant part) a Motion to Dismiss in Rahman v. Schriro, No. 13-CV-6095, the lead case in this consolidated action. (See 13-CV-6095 Doc. 27.) That Opinion (the "Rahman Opinion") held based on the limited factual information of which judicial notice may be taken in connection with a Motion to Dismiss that allegations that an inmate is subjected to multiple SecurPass scans on a daily basis "suggest with sufficient plausibility that Plaintiff may be able to demonstrate through discovery that a serious present injury or a future risk of serious injury exists." (Rahman Opinion at 10 (internal quotation marks and citation omitted).) The Rahman Opinion observed, however, that according to information published by the SecurPass manufacturer (which was submitted by Defendants but which I excluded for purposes of the Motion to Dismiss), it appeared that the SecurPass system does not in fact emit dangerous levels of radiation, even if an individual is scanned thousands of times per year. (See id. at 18 and n.4.) Because that issue was potentially dispositive, I therefore ordered the parties to engage in a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. (Id.) At the close of that period, Defendants could make a Motion for Summary Judgment, and if any part of the case survived that Motion, full discovery would be ordered. (Id.) The complaint in the above-listed case includes allegations similar to those in the Rahman case: namely, that Plaintiff is subjected to SecurPass scans on a frequent and recurring basis. It appears to the Court that under the governing law and the analysis laid out in the Rahman Opinion, this Complaint would not be subject to dismissal on the basis that it fails to allege an objectively sufficiently serious risk to Plaintiff's health. Therefore, the parties in the case listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendant, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmates future health, to be followed by an opportunity for Defendant to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in the case listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 12/18/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-08517-CS (lnl)
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Filing 138
CONSOLIDATION ORDER: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by suchsearches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trialpursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) Plaintiff Stuart's case involves common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. This case also involves common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding this case to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above-listed case is hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in the member case listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 12/8/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-08517-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (7 in 7:14-cv-08517-CS, 138 in 7:13-cv-06095-CS-PED) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-08517-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (8 in 7:14-cv-08517-CS, 139 in 7:13-cv-06095-CS-PED) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-08517-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (140 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-07383-CS) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-07383-CS (lnl)
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Mailed a copy of #138 Order, to Keith Stuart 14A3616 Franklin Correctional Facility 162 Bare Hill Road PO Box 10 Malone, NY 12953. (ca)
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Mailed a copy of #140 Order to Show Cause, to Jaquan Baker DIN# 14R1522 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Mailed a copy of #139 Order to Show Cause, to Keith Stuart 14A3616 Franklin Correctional Facility 162 Bare Hill Road PO Box 10 Malone, NY 12953. (ca)
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Received returned mail re: #131 Order. Mail was addressed to Bernard J. Coleman 12A5438 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 and was returned for the following reason(s): Not Here - Return to Sender. (ca)
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Received returned mail re: #133 Order to Show Cause. Mail was addressed to Bernard J. Coleman 12A5438 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 and was returned for the following reason(s): Not Here - Return to Sender. (ca)
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Filing 137
LETTER from Jaquan Baker re: (RESPONSE) Order to Show Cause. Document filed by Jaquan Baker.(rdz)
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Received returned mail re: #126 Order. Mail was addressed to Charlie Ramos 349-13-16556 G.R.V.C. 09-09 Hazen Street East Elmhurst, NY 11370 and was returned for the following reason(s): Discharged 4/22/2014. (ca)
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Mailed a copy of #136 Order, Set Deadlines/Hearings, to Hirving Ayala, Jr. 14R0912 Mohawk Correctional Facility 6514 Rt. 26 P.O. Box 8451 Rome, NY 13442 Juan Bannister 14R0784 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jovanny Aracena 14R0855 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Miguel Adrian-Reyes 14R0840 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Melvin Davis 13R0206 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Filing 136
ORDER: the Court orders the parties in the above-captioned member case to engage in a sixty-day period of discovery limited to the issue of whether the radiation dose emitted by the SecurPass presents a substantial risk of serious harm to Plaintiff's future health. At the close of that discovery period, Defendants may make a motion for summary judgment. If any part of the case remains viable following that summary judgment motion, the parties shall have the ability to conduct full discovery (under the supervision of Magistrate Judge Davison). The schedule is as follows: 1. Limited discovery to be completed by January 24, 2015. 2. Defendants' motion for summary judgment to be filed by February 23, 2015. 3. Plaintiff's opposition to be filed by March 25, 2015. 4. Defendants' reply to be filed by April 8, 2015. The Clerk of Court is respectfully directed to docket this Order in the lead case and in each of the cases listed in the caption. SO ORDERED.(Limited Discovery due by 1/24/2015. Motions due by 2/23/2015. Responses due by 3/25/2015. Replies due by 4/8/2015.) (Signed by Judge Cathy Seibel on 11/25/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (12 in 7:14-cv-06380-CS, 12 in 7:14-cv-06380-CS) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(lnl)
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Filing 135
ORDER: Plaintiff's motion for relief from the Court's previous order dismissing his case is DENIED. The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service 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 in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Cathy Seibel on 11/20/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05905-CS(lnl)
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Filing 134
ORDER: Plaintiff's motion for relief from the Court's previous order dismissing his case is DENIED. The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service 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 in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 11/20/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06163-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (13 in 7:14-cv-06163-CS) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06163-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (135 in 7:13-cv-06095-CS-PED, 13 in 7:14-cv-05905-CS) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05905-CS (lnl)
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Mailed a copy of #135 Order, to Bryan Keith McClary 14-A-1530 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Mailed a copy of #134 Order, to Terrell Aiken 12R3300 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Mailed a copy of #132 Order to Show Cause, to Robert Adrian 349-11-08179 Manhattan Detention Complex 100 Centre St. New York, NY 11013 Christopher Brown 6707960N Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jovan Ortiz 14R0513 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jamel Ellison 13R1201 Ogdensburg Correctional Facility Ogdensburg, NY 13669 Eric Plock 14A1551 Franklin Correctional Facility 62 Barehill Road PO Box 10 Malone, NY 12953 Willie L. Jones 153-22 Foch Blvd. Jamaica, NY 11434 Terry Williams 216 Rockaway Ave. #10-K Brooklyn, NY 11233 Russell Jacob 13R2800 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Bernard J. Coleman 12A5438 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Mailed a copy of #133 Order to Show Cause, to Jovan Ortiz 14R0513 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Received returned mail re: #126 Order. Mail was addressed to Prince A. Milliner 12R3683 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669-2288 - RELEASED ***Ricardo Lazala 360-13-00146 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 - NOT DELIVERABLE AS ADDRESSED *** Nathaniel Urena One Correction Way Odensburg, NY 13669 - NOT HERE RTS ***Anthony Cooke 11R2768 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669 - RELEASED ***Mayko Morena 441-13-08118 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 - NOT DELIVRABLE AS ADDRESSED ***Carlos Flores 13R1913 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 - RELEASED ***Clarence Douglas Elder, Jr. 13-R-2968 One Correction Way Ogdensburg, NY 13669 - NOT HERE RTS ***Jaquan Watson 13R2274 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 - RELEASED *** Walter Dais 13R1910 Odgensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 - REFUSED/ NOT HERE and was returned for the following reason(s): Reasons Stated with each plaintiif name. (ca)
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Filing 133
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed case, Plaintiff alleges that he is scanned on a frequent and recurring basis. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated May 27, 2014, I denied (in relevant part) a Motion to Dismiss in Rahman v. Schriro, No. 13-CV-6095, the lead case in this consolidated action. (See 13-CV-6095 Doc. 27.) That Opinion (the "Rahman Opinion") held based on the limited factual information of which judicial notice may be taken in connection with a Motion to Dismiss that allegations that an inmate is subjected to multiple SecurPass scans on a daily basis "suggest with sufficient plausibility that Plaintiff may be able to demonstrate through discovery that a serious present injury or a future risk of serious injury exists." (Rahman Opinion at 10 (internal quotation marks and citation omitted).) The Rahman Opinion observed, however, that according to information published by the SecurPass manufacturer (which was submitted by Defendants but which I excluded for purposes of the Motion to Dismiss), it appeared that the SecurPass system does not in fact emit dangerous levels of radiation, even if an individual is scanned thousands of times per year. (See id. at 18 and n.4.) Because that issue was potentially dispositive, I therefore ordered the parties to engage in a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. (Id.) At the close of that period, Defendants could make a Motion for Summary Judgment, and if any part of the case survived that Motion, full discovery would be ordered. (Id.) The complaint in the above-listed case includes allegations similar to those in the Rahman case: namely, that Plaintiff is subjected to SecurPass scans on a frequent and recurring basis. It appears to the Court that under the governing law and the analysis laid out in the Rahman Opinion, this Complaint would not be subject to dismissal on the basis that it fails to allege an objectively sufficiently serious risk to Plaintiff's health. Therefore, the parties in the case listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendant, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health, to be followed by an opportunity for Defendant to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in the case listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 11/19/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS(lnl)
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Filing 132
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small number of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 11/19/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (133 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-06856-CS) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06856-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (7 in 7:14-cv-06467-CS) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Filing 131
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 11/19/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (6 in 7:14-cv-08274-CS, 6 in 7:14-cv-08037-CS, 6 in 7:14-cv-08777-CS, 6 in 7:14-cv-06600-CS, 6 in 7:14-cv-08099-CS, 8 in 7:14-cv-07385-CS, 6 in 7:14-cv-06467-CS, 131 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-06856-CS, 6 in 7:14-cv-08639-CS) Consolidation Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Mailed a copy of #131 Order, to Robert Adrian 349-11-08179 Manhattan Detention Complex 100 Centre St. New York, NY 11013 Christopher Brown 6707960N Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jovan Ortiz 14R0513 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jamel Ellison 13R1201 Ogdensburg Correctional Facility Ogdensburg, NY 13669 Eric Plock 14A1551 Franklin Correctional Facility 62 Barehill Road PO Box 10 Malone, NY 12953 Willie L. Jones 153-22 Foch Blvd. Jamaica, NY 11434 Terry Williams 216 Rockaway Ave. #10-K Brooklyn, NY 11233 Russell Jacob 13R2800 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Bernard J. Coleman 12A5438 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Received returned mail re: #126 Order. Mail was addressed to Francisco Serrano 13R2358 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 and was returned for the following reason(s): Paroled - RTS. (ca)
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Received returned mail re: #126 Order, Mail Order by Certified Mail. Mail was addressed to Franklin Gomez 241-12-10225 09-09 Hazen St East Elmhurst, NY 11370 and was returned for the following reason(s): Discharged 08-15-2014. (ca)
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Received returned mail re: #126 Order. Mail was addressed to Nicholas Florio 05-A-1651 Downstate Correctional Facility P. O. Box F Red Schoolhouse Road Fishkill, NY 12524-0445 and was returned for the following reason(s): Discharged. (ca)
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Mailed a copy of #130 Endorsed Letter, to Mark A. White 13R0445 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Transmission to Docket Assistant Clerk. Transmitted re: (12 in 7:14-cv-06287-CS) Endorsed Letter to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06287-CS. (mml)
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Filing 130
ENDORSED LETTER addressed to Judge Cathy Seibel from Mark White dated 11/3/2014 re: Requesting reconsideration. ENDORSEMENT: Application Denied. The full report does not change my view. I presumed the accuracy of Plaintiff's summary of the report and concluded that Plaintiff nevertheless failed to state a claim. I adhere to that ruling for the reasons stated in the 10/17/2014 Order. SO ORDERED. (Signed by Judge Cathy Seibel on 11/12/2014) (mml)
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Filing 129
RESPONSE TO ORDER TO SHOW CAUSE re: (9 in 7:14-cv-07670-CS, 102 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Romaine Ceasar. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-07670-CS (lnl)
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Filing 128
MEMO ENDORSEMENT on (127 in 7:13-cv-06095-CS-PED) LETTER addressed to Judge Cathy Seibel from Hilliard Jackie dated 11/3/2014 re: request for extension of time to [respond] to OSHOW. ENDORSEMENT: Plaintiff's time to respond to the Order to Show Cause is extended to 12/16/14. So Ordered. (Show Cause Response due by 12/16/2014) (Signed by Judge Cathy Seibel on 11/7/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06921-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (9 in 7:14-cv-06921-CS, 128 in 7:13-cv-06095-CS-PED) Memo Endorsement, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06921-CS (lnl)
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Mailed a copy of #128 Memo Endorsement, Set Deadlines/Hearings, to Hilliard Jackie 14R1063 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Received returned mail(Forms for Making Motions, Opposing Motions & Reply to Motions) Mail was addressed to Angel Hernandez, DIN#14A1308, of Attical Correctional Facility at Box 149, Attica, NY 14011-0149 and was returned for the following reason(s): RELEASED - NOT DELIVERABLE AS ADDRESSED- UNABLE TO FORWARD. (sc) Modified on 11/10/2014 (sc).
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Filing 126
ORDER: On September 26, 2014, the Court ordered the parties in the above-listed member case to engage in a sixty-day period of discovery limited to the issue of whether the radiation dose emitted by the SecurPass presents a substantial risk of serious harm to Plaintiff's future health. (14-CV-5992, Doc. 12 at 3.) The Court also explained that, at the close of the discovery period, Defendants may make a motion for summary judgment and that the parties would have the ability to conduct full discovery (under the supervision of Magistrate Judge Davison) if any part of the case remains viable following that summary judgment motion. (Id.) After that Order was issued, Plaintiff Monoz submitted a document entitled "Motion for Discovery" to the Court that is neither a proper motion nor a discovery request but rather a series of legal arguments in support of Plaintiff's case. (14-CV-5992, Doc. 13.) This "discovery motion" is not a means for obtaining discovery (and indeed, does not seek access to information on the issue of the harm caused by the SecurPass). My chambers has already sent Plaintiff the portions of the Southern District of New York Pro Se Manual dealing with discovery and motions for summary judgment. Plaintiff should refer to that manual for advice on how to conduct discovery and proceed accordingly. The document that Plaintiff has filed refers to the work of Dr. Steve Wing, an epidemiology professor, on the health effects of radiation. (See id. at 2-6.) Plaintiff is also reminded that on summary judgment, the Court will only take into account the testimony of Dr. Wing or anyone else if they are presented in the form of an affidavit or a deposition transcript. See Fed. R. Civ. P. 56(c); Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). The previously set discovery and summary judgment briefing schedule remains in effect. (See 14-CV-5992, Doc. 12 at 3.) The Clerk of Court is respectfully directed to mail Plaintiff a copy of this Order. (Signed by Judge Cathy Seibel on 11/6/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05992-CS(lnl)
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Filing 125
ORDER: Plaintiff's motion for relief from the Court's previous order dismissing his case is DENIED. The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service 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 in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 11/6/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05105-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (125 in 7:13-cv-06095-CS-PED, 17 in 7:14-cv-05105-CS) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05105-CS (lnl)
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Mailed a copy of #126 Order, to Malik Rahman c/o Samanthia Harris 1400 East New York Ave. Brooklyn, NY 11212 Nicholas Florio 05-A-1651 Downstate Correctional Facility P. O. Box F Red Schoolhouse Road Fishkill, NY 12524-0445 Ronald Ulysee 349-13-14736 C-95 A.M.K.C. 18-18 Hazen Street East Elmhurst, NY 11370 Charlie Ramos 349-13-16556 G.R.V.C. 09-09 Hazen Street East Elmhurst, NY 11370 Mario Valdiviezo 11578161R G.R.V.C. 09-09 Hazen Street East Elmhurst, NY 11370 Keith Campbell c/o Carol Campbell 260 Mother Gaston Blvd. Apt. 12G Brooklyn, NY 11212 Lexie Peak 34-25 Vernon Boulevard Room 431 Long Island City, NY 11106 Brandon Banks 349-14-03309 09-09 Hazen Street East Elmhurst, NY 11370 Hirving Ayala, Jr. 14R0912 Mohawk Correctional Facility 6514 Rt. 26 P.O. Box 8451 Rome, NY 13442 Franklin William Gomez 13R2797 Mohawk Correctional Facility 6514 Rt. 26 PO Box 8451 Rome, NY 13442 Franklin Gomez 241-12-10225 09-09 Hazen St East Elmhurst, NY 11370 Adam M. Amsel 14R0896 One Correction Way Ogdensburg, NY 13669 Clarence Douglas Elder, Jr. 13-R-2968 One Correction Way Ogdensburg, NY 13669 Prince A. Milliner 12R3683 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669-2288 Bryan Keith McClary 14-A-1530 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Anton Smith 14R0949 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Walter Dais 13R1910 Odgensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Dwayne Nathaniel Davis, Jr. 13R0610 Ogdensburg Correctional Facility One Correction Way Ogdensburg,, NY 13669 Jamel Purnell 10-A-0030 Groveland Correctional Facility Route 36 Sonyea Road Sonyea, NY 14556-0001 Isaac Middleton 1132 Liberty Avenue #2 Brooklyn, NY 11208 Henry Morel 14R0283 One Correction Way Odsenburg, NY 13669 Nathaniel Urena One Correction Way Odensburg, NY 13669 Feroz Khan 13R1041 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jaquan Watson 13R2274 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Dennis Berry 13R0990 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Darren Smith 120 Aldrich Street Apt. 21G Bronx, NY 10475 Juan Bannister 14R0784 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Gregory J. Graham 13R0688 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Angel Hernandez 14A1308 Attica Correctional Facility Attica, NY 14011 Jorge Luis Reyes 12R1907 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Lorell Purdie 14R1071 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Carlos Monoz 13R3504 Ogdensburg One Correction Way Ogdensburg, NY 13669 Anthony Cooke 11R2768 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669 Jimmy FanFan 14R0662 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Edwin Santiago 13R3510 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jose Valentin 13R0680 Ogdensburg Correctional Way One Correction Way Ogdensburg, NY 13669 Laurence P. Kearns 13R3546 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jose Colon 14R1165 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Michael White 13R03659 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Miguel Adrian-Reyes 14R0840 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Francisco Serrano 13R2358 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 John Hughes 13A3597 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Kenneth Davis 14A1526 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Esteban Herrera aka: Steven Herrera 13R3014 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Arnold Diaz 14R1058 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Ezra Woods 14R1088 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jamel Clark 14R0661 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669 Jovanny Aracena 14R0855 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Terrell Aiken 12R3300 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Hakeem Smith 12R2413 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Christopher Daniels 14R0936 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Christopher P. Fusco 11-A-4987 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Sean Smith aka:Shawn Smith 13R1873 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Michael Science Brown 13R0091 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Walter Peterson 13R2525 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Anthony Diaz 14R0902 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Andy Petithomme 12R3813 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Mayko Morena 441-13-08118 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Luis A. Victor 14R0438 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 James Mills 12R2509 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Orlando Diaz 14R1906 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Bryan Reyes 13R2280 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Sean Pessoa 13R2524 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Hilliard Jackie 14R1063 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Ricardo Lazala 360-13-00146 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Melvin Butler 14R1581 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jamal Hunter 14R1278/980-13-00494 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Ruben DeJesus 12R3011 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Melvin Davis 13R0206 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Velair Strachon 13R3008 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 William Quinones 14R0886 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 William Garcia 13A3306 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 William Rivera 03910082N Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Carlos Flores 13R1913 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Enrico Caprioni 14R0202 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Westley Capel 14-R-1273 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Mark A. White 13R0445 Ogdensburg Correctional Facility One Correction Way Ogdensburg, Ny 13669 Anthony Yates 13R3176 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Oscar Bejar 14R1090 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Craig Witter 14R0952 Ogdensburg Correctional Facility One Correction Way Ogdensburg,, NY 13669 Luis Robles 14R0797 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Hector Rodriguez 13R0732 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Steve Dow 13A5225 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 David Eisbey 14R1496 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Romaine Ceasar 14R1567 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jose Sanchez 12A1378 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Ralph Dana Cote 14R0442 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jaquan Deas Jaquan Deas 13R2135 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Julio Villareal 12R1347 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jaquan Baker DIN# 14R1522 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Anthony Musacchia 14R1712 Ogdensburg Correctional Facility One Correction Way Ogdensburg, n 13669. (ca)
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Transmission to Docket Assistant Clerk. Transmitted re: (14 in 7:14-cv-05992-CS, 126 in 7:13-cv-06095-CS-PED) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05992-CS (lnl)
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Filing 124
MEMO ENDORSEMENT on #119 LETTER addressed to Judge Cathy Seibel from Eric Porter dated November 3, 2014 re: Defendant's Summary Judgment Motion. ENDORSEMENT: Application Granted. So Ordered. (Signed by Judge Cathy Seibel on 11/3/2014) (lnl)
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Filing 123
ORDER: Plaintiff's motion for relief from the Court's previous order dismissing his case is DENIED. The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service 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 in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED: (Signed by Judge Cathy Seibel on 11/4/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05267-CS (lnl)
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Filing 122
DISMISSAL ORDER : the Complaints in the above-listed cases are DISMISSED under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and each member case listed above, close the above-listed member cases, and mail a copy of this Order to each of the Plaintiffs to whom it applies. Copies of the unpublished cases cited herein not previously provided will be mailed to Plaintiffs from Chambers. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 11/4/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (8 in 7:14-cv-06593-CS, 8 in 7:14-cv-06807-CS, 122 in 7:13-cv-06095-CS-PED, 10 in 7:14-cv-06995-CS, 12 in 7:14-cv-06216-CS, 8 in 7:14-cv-07429-CS, 11 in 7:14-cv-05936-CS, 12 in 7:14-cv-04856-CS, 10 in 7:14-cv-07679-CS, 8 in 7:14-cv-07218-CS, 8 in 7:14-cv-07111-CS, 9 in 7:14-cv-07374-CS, 8 in 7:14-cv-06923-CS, 9 in 7:14-cv-06795-CS) Order of Dismissal, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Transmission to Judgments and Orders Clerk. Transmitted re: (8 in 7:14-cv-06593-CS, 8 in 7:14-cv-06807-CS, 122 in 7:13-cv-06095-CS-PED, 10 in 7:14-cv-06995-CS, 12 in 7:14-cv-06216-CS, 8 in 7:14-cv-07429-CS, 11 in 7:14-cv-05936-CS, 12 in 7:14-cv-04856-CS, 10 in 7:14-cv-07679-CS, 8 in 7:14-cv-07111-CS, 9 in 7:14-cv-07374-CS, 8 in 7:14-cv-06923-CS, 9 in 7:14-cv-06795-CS) Order of Dismissal, to the Judgments and Orders Clerk. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (123 in 7:13-cv-06095-CS-PED, 16 in 7:14-cv-05267-CS) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05267-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: #124 Memo Endorsement, to the Docket Assistant Clerk for case processing. (lnl)
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Filing 127
LETTER addressed to Judge Cathy Seibel from Hilliard Jackie dated 11/3/2014 re: request for extension of time to [respond] to OSHOW. Document filed by Hilliard Jackie. (Zaepfel, Kenneth) Modified on 11/7/2014 (Zaepfel, Kenneth).
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Filing 121
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small number of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 11/3/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06803-CS, 7:14-cv-07328-CS, 7:14-cv-07383-CS, 7:14-cv-07848-CS (lnl)
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Filing 120
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 11/3/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06803-CS, 7:14-cv-07328-CS, 7:14-cv-07383-CS, 7:14-cv-07848-CS(lnl)
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Filing 119
LETTER addressed to Judge Cathy Seibel from Eric Porter dated November 3, 2014 re: Defendant's Summary Judgment Motion. Document filed by Dora Schriro.(Porter, Eric)
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Filing 118
RESPONSE TO ORDER TO SHOW CAUSE re: (15 in 7:14-cv-04855-CS, 11 in 7:14-cv-05994-CS, 10 in 7:14-cv-06291-CS, 94 in 7:13-cv-06095-CS-PED) Order to Show Cause,,,,,,,,,,,,,,,,,,,,,,,, (9 in 7:14-cv-06380-CS, 10 in 7:14-cv-06161-CS, 107 in 7:13-cv-06095-CS-PED) Order to Show Cause,,,,,. Document filed by N.Y.C. Department of Corrections, Dora Schriro, City of New York, The City of New York. (Attachments: #1 Exhibit)Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(Porter, Eric)
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Transmission to Docket Assistant Clerk. Transmitted re: (7 in 7:14-cv-07848-CS, 7 in 7:14-cv-06803-CS, 121 in 7:13-cv-06095-CS-PED, 7 in 7:14-cv-07328-CS, 7 in 7:14-cv-07383-CS) Order to Show Cause, (6 in 7:14-cv-07848-CS, 120 in 7:13-cv-06095-CS-PED, 6 in 7:14-cv-07328-CS, 6 in 7:14-cv-07383-CS, 6 in 7:14-cv-06803-CS) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06803-CS, 7:14-cv-07328-CS, 7:14-cv-07383-CS, 7:14-cv-07848-CS(lnl)
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Filing 110
RESPONSE TO ORDER TO SHOW CAUSE re: (8 in 7:14-cv-06216-CS, 61 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Walter Peterson. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06216-CS (lnl)
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Filing 111
RESPONSE TO ORDER TO SHOW CAUSE. Document filed by Jose Sanchez. (sc)
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Filing 113
RESPONSE TO ORDER TO SHOW CAUSE re: (85 in 7:13-cv-06095-CS-PED, 7 in 7:14-cv-06795-CS) Order to Show Cause. Document filed by William Quinones. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06795-CS (lnl)
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Filing 112
RESPONSE TO ORDER TO SHOW CAUSE re: (40 in 7:13-cv-06095-CS-PED, 6 in 7:14-cv-05936-CS) Order to Show Cause. Document filed by Lorell Purdie. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05936-CS (lnl)
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Mailed notice re: #106 Order #105 Endorsed Letter, #109 Response to Order to Show Cause #103 Order #108 Order of Dismissal #107 Order to Show Cause #104 Order, Set Deadlines to the pro se litigants. (fk)
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Filing 117
RESPONSE TO ORDER TO SHOW CAUSE re: (7 in 7:14-cv-07374-CS, 85 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Anthony Yates. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-07374-CS (lnl) (Additional attachment(s) added on 10/31/2014: #1 Exhibit A) (lnl).
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Filing 115
RESPONSE TO ORDER TO SHOW CAUSE re: (7 in 7:14-cv-05992-CS, 41 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Carlos Monoz. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05992-CS (lnl)
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Filing 114
RESPONSE TO ORDER TO SHOW CAUSE re: (7 in 7:14-cv-06291-CS) Order to Show Cause (10 in 7:14-cv-06291-CS, 94 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Miguel Adrian-Reyes. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06291-CS (lnl)
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Filing 109
RESPONSE TO ORDER TO SHOW CAUSE re: (8 in 7:14-cv-06163-CS, 61 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Terrell Aiken. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06163-CS (lnl)
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Filing 116
RESPONSE TO ORDER TO SHOW CAUSE re: (8 in 7:14-cv-06163-CS, 61 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Terrell Aiken. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06163-CS(lnl)
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Filing 108
ORDER OF DISMISSAL: Accordingly, the Complaints in the above-listed cases are DISMISSED under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and each member case listed above, close the above-listed member cases, and mail a copy of this Order to each of the Plaintiffs to whom it applies. Copies of the unpublished cases cited herein not previously provided will be mailed to Plaintiffs from Chambers. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 10/17/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(mml)
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Filing 107
ORDER TO SHOW CAUSE: Therefore, the parties in the cases listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendants, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmates future health, to be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining at this time many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 10/17/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06161-CS, 7:14-cv-06380-CS. (mml)
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Filing 106
ORDER: In an abundance of caution and because Plaintiffs are proceeding pro se, the Court grants the above-listed Plaintiffs an additional thirty days from today to submit their responses. The complaints of each Plaintiff who has not submitted a response by the new deadline November 16, 2014 will be dismissed. The Clerk's Office is respectfully directed to mail a copy of this Order and the September 10, 2014 Order to Show Cause (13-CV-6095, Doc. 71) to each of the above-listed Plaintiffs. SO ORDERED. (Signed by Judge Cathy Seibel on 10/17/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (mml)
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Filing 105
ENDORSED LETTER addressed to Judge Cathy Seibel from Esteban Herrera dated 9/25/2014 re: Plaintiff requests an extension of time. ENDORSEMENT: Application Granted. 30-day extension. New deadline is Nov. 16, 2014. Mr. Herrera, please provide more specific facts about you case, such as the number of times you were scanned, or other factual information that you believe will distinguish your case from the Middletown case. SO ORDERED. (Signed by Judge Cathy Seibel on 10/17/2014) (mml)
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Filing 104
ORDER: Therefore, the Court orders the parties in the above-captioned member case to engage in a sixty-day period of discovery limited to the issue of whether the radiation dose emitted by the SecurPass presents a substantial risk of serious harm to Plaintiff's future health. At the close of that discovery period, Defendants may make a motion for summary judgment. If any part of the case remains viable following that summary judgment motion, the parties shall have the ability to conduct full discovery (under the supervision of Magistrate Judge Davison). The schedule is as follows: 1. Limited discovery to be completed by December 15, 2014. 2. Defendants' motion for summary judgment to be filed by January 14, 2015. 3. Plaintiff's opposition to be filed by February 13, 2015. 4. Defendants' reply to be filed by February 27, 2015. The Clerk of Court is respectfully directed to docket this Order in the lead case and in each of the cases listed in the caption. SO ORDERED. (Limited Discovery due by 12/15/2014. Motions due by 1/14/2015. Responses due by 2/13/2015. Replies due by 2/27/2015.) (Signed by Judge Cathy Seibel on 10/17/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-07163-CS. (mml)
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Filing 103
ORDER: By order dated August 27, 2014, the Court explained that, for several reasons, it appears that Plaintiff's Complaint fails to state a claim on which relief can be granted and ordered Plaintiff to show cause within thirty days why his case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6). (See 14-CV-6423, Doc. 7.) Because that deadline has now passed and Plaintiff has failed to respond to the order, his case is DISMISSED for the reasons set forth in my August 27, 2014 order. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and the member case, close the member case, and mail a copy of this Order to Plaintiff. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 10/17/2014) (mml)
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Transmission to Docket Assistant Clerk. Transmitted re: (10 in 7:14-cv-06293-CS, 9 in 7:14-cv-06139-CS, 11 in 7:14-cv-05200-CS, 108 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-06163-CS, 9 in 7:14-cv-06808-CS, 9 in 7:14-cv-07284-CS, 10 in 7:14-cv-06287-CS, 9 in 7:14-cv-06037-CS, 8 in 7:14-cv-06737-CS, 8 in 7:14-cv-06806-CS, 9 in 7:14-cv-06153-CS, 10 in 7:14-cv-06592-CS, 8 in 7:14-cv-06815-CS, 11 in 7:14-cv-06817-CS, 9 in 7:14-cv-06470-CS, 9 in 7:14-cv-06222-CS, 9 in 7:14-cv-06994-CS, 9 in 7:14-cv-06275-CS, 9 in 7:14-cv-06599-CS, 9 in 7:14-cv-06245-CS) Order of Dismissal to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(mml)
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Transmission to Docket Assistant Clerk. Transmitted re: #103 Order and #104 Order to the Docket Assistant Clerk for case processing. (mml)
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Set/Reset Deadlines: Show Cause Response due by 11/16/2014. (mml)
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Transmission to Docket Assistant Clerk. Transmitted re: (9 in 7:14-cv-06380-CS, 10 in 7:14-cv-06161-CS, 107 in 7:13-cv-06095-CS-PED) Order to Show Cause to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06161-CS, 7:14-cv-06380-CS. (mml)
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Transmission to Docket Assistant Clerk. Transmitted re: (8 in 7:14-cv-06863-CS, 8 in 7:14-cv-06860-CS, 8 in 7:14-cv-06969-CS, 8 in 7:14-cv-06921-CS, 106 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-07178-CS, 8 in 7:14-cv-06804-CS) Order to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (mml)
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Transmission to Docket Assistant Clerk. Transmitted re: (105 in 7:13-cv-06095-CS-PED) Endorsed Letter, (10 in 7:14-cv-06516-CS) Memo Endorsement to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06516-CS. (mml)
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Set/Reset Deadlines: Show Cause Response due by 10/17/2014. Associated Cases: 7:13-cv-06095-CS-PED et al. (mml)
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Transmission to Judgments and Orders Clerk. Transmitted re: (10 in 7:14-cv-06293-CS, 9 in 7:14-cv-06139-CS, 11 in 7:14-cv-05200-CS, 108 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-06163-CS, 9 in 7:14-cv-06808-CS, 9 in 7:14-cv-07284-CS, 10 in 7:14-cv-06287-CS, 9 in 7:14-cv-06037-CS, 8 in 7:14-cv-06737-CS, 8 in 7:14-cv-06806-CS, 9 in 7:14-cv-06153-CS, 10 in 7:14-cv-06592-CS, 8 in 7:14-cv-06815-CS, 11 in 7:14-cv-06817-CS, 9 in 7:14-cv-06470-CS, 9 in 7:14-cv-06222-CS, 9 in 7:14-cv-06994-CS, 9 in 7:14-cv-06275-CS, 9 in 7:14-cv-06599-CS, 9 in 7:14-cv-06245-CS) Order of Dismissal to the Judgments and Orders Clerk. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (mml)
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Filing 102
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small number of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 10/16/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(lnl)
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Filing 101
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 10/16/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Filing 100
RESPONSE TO ORDER TO SHOW CAUSE re: (7 in 7:14-cv-06380-CS, 85 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Melvin Davis. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06380-CS (lnl)
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Filing 99
RESPONSE TO ORDER TO SHOW CAUSE re: (85 in 7:13-cv-06095-CS-PED, 7 in 7:14-cv-07284-CS) Order to Show Cause. Document filed by Mark A. White, Mark A. White. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-07284-CS (lnl)
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Filing 98
ORDER granting #97 Letter Motion for Extension of Time to File Response/Reply: See Docket Entry #10 in 14-CV-6216. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy)
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Filing 97
LETTER MOTION for Extension of Time to File Response to Order to Show Cause, addressed to Judge Cathy Seibel from Walter Peterson, dated 9/27/2014, Document filed by Walter Peterson. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06216-CS (lnl)
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Filing 96
RESPONSE TO ORDER TO SHOW CAUSE re: (7 in 7:14-cv-06817-CS, 61 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Luis A. Victor, Luis A. Victor. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06817-CS (lnl)
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Filing 95
ORDER: This Court has ordered that each of the above-listed Plaintiffs respond to an Order to Show Cause. Plaintiff Ramos was ordered to show cause (see 14-CV-692, Doc. 17) why in his case the Court should not follow the approach taken by this Court in its May 27, 2014 decision in Rahman v. Schriro, No. 13-CV-6095, the lead case in this consolidated action (13-CV-6095 Doc. 27), and order a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. Plaintiffs Milliner and Davis were ordered to show cause (see 13-CV-6095, Doc. 37) why in their cases the Court should not follow the approach by this Court in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action (see 13-CV-6095, Doc. 33), and dismiss their cases under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Plaintiffs' thirty days to respond to the Orders to Show Cause have passed. The Court has also become aware, however, that the copies of each of the Orders that were sent to Plaintiffs' prison addresses were returned to the Clerk's Office. Plaintiffs have the obligation to keep their record addresses updated so that mail from the Court may reach them. In an abundance of caution, however, and because Plaintiffs are proceeding pro se, the Court grants the above-listed Plaintiffs an additional thirty days (running from the expiration of the previous deadline on September 19, 2014) to submit their responses. The cases of each Plaintiff who has not submitted a response by the new deadline October 19, 2014 will be closed. SO ORDERED. ( Show Cause Response due by 10/19/2014.) (Signed by Judge Cathy Seibel on 10/2/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-00692-CS, 7:14-cv-05530-CS, 7:14-cv-05997-CS(lnl)
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Filing 94
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). In the above-listed cases, Plaintiffs' complaints provided little or no information about how many times they had each been scanned by a SecurPass. (14-CV-4855, Doc. 2 at 2 (Ayala); 14-CV-5994, Doc. 2 at 2-3 (Bannister); 14-CV-6291, Doc. 1 at 2-3 (Adrian-Reyes).) Accordingly, the Court ordered each these Plaintiffs to show cause (see, e.g., 14-CV-4855, Doc. 11) why his complaint should not be dismissed for failure to state a claim for the reasons discussed in the Court's August 13, 2014 Opinion and Order dismissing Middleton v. City of New York (13-CV-6095, Doc. 33 ("Middleton Opinion")) namely, that each Plaintiff fails to allege that he was scanned a sufficient number of times to satisfy the objective prong of the "deliberate indifference" standard governing prison condition claims. See Farmer, 511 U.S. at 834. In their responses to the Orders to Show Cause, these Plaintiffs allege that they are scanned on a frequent and recurring basis, such as when going to and coming from their daily work assignments. (14-CV-4855, Doc. 14 at 1-2 (Ayala); 14-CV-5994, Doc. 9 at 2 (Bannister); 14-CV-6291, Doc. 9 at 2 (Adrian-Reyes). As a result, these cases are inappropriate for dismissal under the reasoning of the Middleton Opinion. In the lead case in this consolidated action, Rahman v. Schriro, No. 13-CV-6095, by Opinion and Order dated May 27, 2014, I denied (in relevant part) a Motion to Dismiss. (See 13-CV-6095, Doc. 27 ("Rahman Opinion").) The Rahman Opinion held based on the limited factual information of which judicial notice may be taken in connection with a motion to dismiss that allegations that an inmate is subjected to multiple SecurPass scans on a daily basis "suggest with sufficient plausibility that Plaintiff may be able to demonstrate through discovery that a serious present injury or a future risk of serious injury exists." (Id. at 10 (internal quotation marks and citation omitted).) The Rahman Opinion observed, however, that according to information published by the SecurPass manufacturer (which was submitted by Defendants but which I excluded for purposes of the Motion to Dismiss), it appeared that the SecurPass system does not in fact emit dangerous levels of radiation, even if an individual is scanned thousands of times per year. (See id. at 18 & n.4.) Because that issue was potentially dispositive, I therefore ordered the parties to engage in a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. (Id.) At the close of that period, Defendants could make a Motion for Summary Judgment, and if any part of the case survived that Motion, full discovery would be ordered. (Id.) The responses to the Orders to Show Cause in the above-listed cases, combined with their Complaints, include allegations similar to those in the Rahman case namely, that Plaintiffs are subjected to SecurPass scans on a frequent and recurring basis.3 It appears to the Court that under the governing law and the analysis laid out in the Rahman Opinion, these claims would not be subject to dismissal on the basis that they fail to allege an objectively sufficiently serious risk to Plaintiffs' health. It further appears to the Court that limited discovery, as in Rahman, is appropriate. Therefore, the parties in the cases listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendants, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health, to be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining at this time many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 10/2/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-04855-CS, 7:14-cv-05994-CS, 7:14-cv-06291-CS(lnl)
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Filing 92
RESPONSE TO ORDER TO SHOW CAUSE re: (71 in 7:13-cv-06095-CS-PED, 7 in 7:14-cv-06994-CS) Order to Show Cause. Document filed by Melvin Butler. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06994-CS(lnl)
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Filing 91
RESPONSE TO ORDER TO SHOW CAUSE re: (61 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-06161-CS) Order to Show Cause. Document filed by Jovanny Aracena. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06161-CS(lnl)
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Filing 90
DISMISSAL ORDER: the Complaints in the above-listed cases are DISMISSED under Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. 1915A for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and each member case listed above, close the above-listed member cases, and mail a copy of this Order to each of the Plaintiffs to whom it applies. Copies of the unpublished cases cited herein not previously provided will be mailed to Plaintiffs from Chambers. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 9/26/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Filing 89
ORDER: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass x-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. Each of the Plaintiffs in the above-listed actions was ordered to show cause (see 13-CV-6095, Docs. 38, 41, 42) why his case should not proceed in the manner described in the Court's May 27, 2014 Opinion and Order in the lead case, Rahman v. Schriro, (13-CV-6095, Doc. 27 ("Rahman Opinion")) that is, why the Court should not order a sixty-day period of limited discovery solely on the potentially dispositive issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. This discovery period would be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Three of the above-listed Plaintiffs Messrs. Valdiviezo, Peak and Gomez have not filed a response to the Order to Show Case and their thirty-day deadline to do so has now passed. The other three Plaintiffs have each filed a response to the Order to Show Cause. (See 14-CV-849, Doc. 24 (Campbell); 14-CV-5523, Doc. 12 (Elder); 14-CV-5992, Doc. 11 (Monoz).) None of these responses persuades the Court that it should deviate from the Rahman Opinion approach. Mr. Campbell's and Mr. Monoz's responses do little more than reiterate the allegations in their Complaint about the harmfulness of the SecurPass, the very issue that would be the subject of discovery under Rahman. (See 14-CV-849, Doc. 24 at 1.) Mr. Elder's response, in addition to restating his allegations, makes two additional arguments, neither of which is persuasive. First, Mr. Elder argues that it is an invasion of privacy to require all inmates to strip naked to be scanned in the presence of other detainees. (14-CV-5523, Doc. 12 at 3.) But as long as the policy furthers a legitimate penological interest and is not intended to intimidate, harass, or punish, strip searches in the presence of other inmates do not amount to constitutional violations. See, e.g., Israel v. City of N.Y., No. 11-CV-7726, 2012 WL 4762082, at *3 (S.D.N.Y. Oct. 5, 2012); Miller v. Bailey, No. 05-CV-5493, 2008 WL 1787692, at *8 (E.D.N.Y. Apr. 17, 2008); cf. George v. City of N.Y., Nos. 12-CV-6365, 13-CV-3511, 13-CV-3514, 2013 WL 5943206, at *7-8 (S.D.N.Y. Nov. 6, 2013) (allegations that inmates were strip searched in front of trainee corrections officers solely to "make a spectacle of the inmates for the new recruits" are sufficient to state claim for constitutional violation) (internal quotation marks and alteration omitted). There is no suggestion by any Plaintiff that the stripping required here had any malicious purpose, and the penological purpose of requiring inmates entering and leaving the facility to remove their clothing the detection of contraband is obvious. Second, Mr. Elder contends that because he was a "low-classification detainee" he should not have been subjected to such invasive security protocols. (14-CV-5523, Doc. 12 at 3.) But the Supreme Court has recognized the legitimate penological purposes behind strip searching in a more invasive fashion than was apparently employed here every inmate entering a general population facility, regardless of individualized suspicion. See Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012). Neither of these arguments demonstrates that the Court should vary the Rahman Opinion approach in Mr. Elder's case. For the reasons stated above, the Court orders the parties in each of the cases listed in the caption to engage in a sixty-day period of discovery limited to the issue of whether the radiation dose emitted by the SecurPass presents a substantial risk of serious harm to Plaintiff's future health. At the close of that discovery period, Defendants may make a motion for summary judgment. If any part of the case remains viable following that summary judgment motion, the parties shall have the ability to conduct full discovery (under the supervision of Magistrate Judge Davison). The schedule is as follows: 1. Limited discovery to be completed by December 2, 2014. 2. Defendants' motions for summary judgment to be filed by January 2, 2015. 3. Plaintiffs' oppositions to be filed by February 2, 2015. 4. Defendants' replies to be filed by February 17, 2015. The Clerk of Court is respectfully directed to docket this Order in the lead case and in each of the cases listed in the caption. SO ORDERED. (Limited Discovery due by 12/2/2014. Defendants' Motions for Summary Judgment due by 1/2/2015. Plaintiffs' Responses due by 2/2/2015. Defendants' Replies due by 2/17/2015.) (Signed by Judge Cathy Seibel on 9/26/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. Copies Have Been Mailed By Chambers (lnl)
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Filing 88
ORDER: By Order dated August 18, 2014, this Court granted Defendants' Motion to Dismiss and dismissed Plaintiff's Complaint. (14-CV-187, Doc. 17.) That Order also stated that if Plaintiff believed in good faith, after reading the Middleton Opinion, that he could state a valid claim by providing more detailed factual allegations, he may write a letter to the Court within thirty days explaining what facts he would add in an Amended Complaint, and the Court would determine whether leave to amend is appropriate. (Id.) Plaintiff's thirty days have passed. The Court has also become aware, however, that the copy of the dismissal order that was sent to Plaintiff's Downstate Correctional Facility address was returned to the Clerk's Office. It is Plaintiff's obligation to keep his record address updated so that mail from the Court may reach him. In an abundance of caution, however, the Court grants Plaintiff an additional thirty days (running from the expiration of the previous deadline on September 17, 2014) to submit a letter. If Plaintiff has not submitted a letter by the new deadline October 17, 2014 this case will be closed. SO ORDERED. (Signed by Judge Cathy Seibel on 9/26/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-00187-CS(lnl)
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Filing 85
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small handful of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 9/23/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. Copies Mailed By Chambers. (lnl)
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Filing 84
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 9/23/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Filing 87
LETTER from Orlando Diaz dated 9/16/14 re: RESPONSE TO ORDER TO SHOW CAUSE. Document filed by Orlando Diaz.(sc)
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Filing 86
LETTER from Ezra Woods dated 9/17/14 re: RESPONSE TO ORDER TO SHOW CAUSE. Document filed by Ezra Woods.(sc)
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Filing 83
RESPONSE TO ORDER TO SHOW CAUSE re: (7 in 7:14-cv-05992-CS, 41 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Carlos Monoz. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05992-CS (lnl)
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Filing 82
LETTER addressed to Judge Cathy Seibel from Keith Campbell, dated 9/15/2014, re: Plaintiff writes to ask that RadPro SecurePass be taken out of the facility and for compensation for the near future. Document filed by Keith Campbell.(lnl)
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Filing 81
RESPONSE TO ORDER TO SHOW CAUSE re: (7 in 7:14-cv-05992-CS, 41 in 7:13-cv-06095-CS-PED) Order to Show Cause,,,,, (21 in 7:14-cv-00849-CS, 21 in 7:14-cv-00849-CS, 14 in 7:14-cv-00843-CS, 14 in 7:14-cv-00843-CS, 38 in 7:13-cv-06095-CS-PED, 38 in 7:13-cv-06095-CS-PED, 17 in 7:14-cv-00692-CS, 17 in 7:14-cv-00692-CS, 15 in 7:14-cv-03197-CS, 15 in 7:14-cv-03197-CS, 9 in 7:14-cv-04874-CS, 9 in 7:14-cv-04874-CS) Order to Show Cause, Terminate Motions,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, (7 in 7:14-cv-07163-CS, 72 in 7:13-cv-06095-CS-PED) Order to Show Cause,,,,,,,,,,,,,,,,,,, (42 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-05523-CS) Order to Show Cause,,,,,,,,,,,,,,,,,,,. Document filed by City of New York. (Attachments: #1 Exhibit)Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(Porter, Eric)
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Filing 80
RESPONSE TO ORDER TO SHOW CAUSE re: (37 in 7:13-cv-06095-CS-PED, 7 in 7:14-cv-05994-CS) Order to Show Cause. Document filed by Juan Bannister, Juan Bannister. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05994-CS (lnl)
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Received returned mail re: #51 Order. Mail was addressed to Michael White 13R03659 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Prince A. Milliner 12R3683 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669-2288 *** Mayko Morena 441-13-08118 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 *** Nathaniel Urena One Correction Way Odensburg, NY 13669 and was returned for the following reason(s): Not deliverable as addressed - unable to forward. (ca)
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Received returned mail re: #32 Order. Mail was addressed to Darren Smith 09A6008 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 and was returned for the following reason(s): Attempted - Not Known. (ca)
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Filing 93
RESPONSE TO ORDER TO SHOW CAUSE re: #37 Order to Show Cause. Document filed by Darren Smith. (lnl)
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Filing 79
RESPONSE TO ORDER TO SHOW CAUSE re: #40 Order to Show Cause. Document filed by Laurence P. Kearns.(sac) Modified on 9/18/2014 (lnl).
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Filing 78
RESPONSE TO ORDER TO SHOW CAUSE re: #40 Order to Show Cause. Document filed by Jorge Luis Reyes. (sac) Modified on 9/18/2014 (lnl).
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Received returned mail re: #51 Order. Mail was addressed to Charlie Ramos 349-13-16556 G.R.V.C. 09-09 Hazen Street East Elmhurst, NY 11370 and was returned for the following reason(s): ROR - Released Return to Sender. (ca)
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Received returned mail re: #51 Order. Mail was addressed to Franklin Gomez 241-12-10225 09-09 Hazen St East Elmhurst, NY 11370 and was returned for the following reason(s): Released 08/15/2014 RTS. (ca)
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Filing 77
DISMISSAL ORDER: the Complaints in the above-listed cases are DISMISSED under Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. 1915A for failure to state a claim on which relief can be granted. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and each member case listed above, close the above-listed member cases, and mail a copy of this Order to each of the Plaintiffs to whom it applies. Copies of the unpublished cases cited herein not previously provided will be mailed to Plaintiffs from Chambers. 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, 444-45 (1962). SO ORDERED. (Signed by Judge Cathy Seibel on 9/12/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Filing 75
RESPONSE TO ORDER TO SHOW CAUSE re: #40 Order to Show Cause filed by Miguel Adrian-Reyes. (rdz) Modified on 9/17/2014 (lnl).
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Filing 76
(Affirmation)RESPONSE TO ORDER TO SHOW CAUSE. Document filed by Christopher P. Fusco. (sc)
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Filing 74
RESPONSE TO ORDER TO SHOW CAUSE re: (40 in 7:13-cv-06095-CS-PED, 7 in 7:14-cv-06208-CS) Order to Show Cause. Document filed by Laurence P. Kearns. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06208-CS(lnl)
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Filing 73
RESPONSE TO ORDER TO SHOW CAUSE re: (42 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-05523-CS) Order to Show Cause. Document filed by Clarence Douglas Elder, Jr. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05523-CS (lnl)
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Filing 72
ORDER TO SHOW CAUSE: ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege that they are scanned on a frequent and recurring basis, such as when going to and coming from their daily work assignments. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated May 27, 2014, I denied (in relevant part) a Motion to Dismiss in Rahman v. Schriro, No. 13-CV-6095, the lead case in this consolidated action. (See 13-CV-6095 Doc. 27.) That Opinion (the "Rahman Opinion") held - based on the limited factual information of which judicial notice may be taken in connection with a Motion to Dismiss - that allegations that an inmate is subjected to multiple SecurPass scans on a daily basis "suggest with sufficient plausibility that Plaintiff may be able to demonstrate through discovery that a serious present injury or a future risk of serious injury exists." (Rahman Opinion at 10 (internal quotation marks and citation omitted).) The Rahman Opinion observed, however, that according to information published by the SecurPass manufacturer (which was submitted by Defendants but which I excluded for purposes of the Motion to Dismiss), it appeared that the SecurPass system does not in fact emit dangerous levels of radiation, even if an individual is scanned thousands of times per year. (See id at 18 and n.4.) Because that issue was potentially dispositive, I therefore ordered the parties to engage in a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. (Id.) At the close of that period, Defendants could make a Motion for Summary Judgment, and if any part of the case survived that Motion, full discovery would be ordered. (Id.) The complaints in the above-listed cases include allegations similar to those in the Rahman case: namely, that Plaintiffs are subjected to SecurPass scans on a frequent and recurring basis. It appears to the Court that under the governing law and the analysis laid out in the Rahman Opinion, these Complaints would not be subject to dismissal on the basis that they fail to allege an objectively sufficiently serious risk to Plaintiffs' health. Therefore, the parties in the cases listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendants, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health, to be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 9/10/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-07163-CS (lnl)
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Filing 71
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small handful of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13,2014, I granted a Motion to Dismiss in Middleton v. City of N.Y. No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations - that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 9/10/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. Copies Will Be Mailed By Chambers. (lnl)
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Filing 70
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court - on motion or sua sponte - may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 9/10/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Filing 68
(Affirmation)RESPONSE TO ORDER TO SHOW CAUSE. Document filed by Clarence Douglas Elder, Jr. (sc)
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Filing 67
RESPONSE TO ORDER TO SHOW CAUSE re: (40 in 7:13-cv-06095-CS-PED, 9 in 7:14-cv-05105-CS) Order to Show Cause. Document filed by Angel Hernandez. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05105-CS (lnl)
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Filing 66
RESPONSE TO ORDER TO SHOW CAUSE re: (8 in 7:14-cv-05989-CS, 37 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Anton Smith. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05989-CS(lnl)
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Filing 69
RESPONSE TO ORDER TO SHOW CAUSE re: (40 in 7:13-cv-06095-CS-PED, 7 in 7:14-cv-06137-CS) Order to Show Cause,,,, (37 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Jimmy FanFan. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06137-CS(lnl)
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Filing 65
(Affirmation)RESPONSE TO ORDER TO SHOW CAUSE. Document filed by Feroz Khan. (sc)
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Filing 64
(Affirmation)RESPONSE TO ORDER TO SHOW CAUSE. Document filed by Anthony Cooke. (sc)
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Mailed a copy of #51 Order, to Malik Rahman c/o Samanthia Harris 1400 East New York Ave. Brooklyn, NY 11212 Nicholas Florio 05-A-1651 Downstate Correctional Facility P. O. Box F Red Schoolhouse Road Fishkill, NY 12524-0445 Ronald Ulysee 349-13-14736 C-95 A.M.K.C. 18-18 Hazen Street East Elmhurst, NY 11370 Charlie Ramos 349-13-16556 G.R.V.C. 09-09 Hazen Street East Elmhurst, NY 11370 Mario Valdiviezo 11578161R G.R.V.C. 09-09 Hazen Street East Elmhurst, NY 11370 Keith Campbell c/o Carol Campbell 260 Mother Gaston Blvd. Apt. 12G Brooklyn, NY 11212 Lexie Peak 34-25 Vernon Boulevard Room 431 Long Island City, NY 11106 Brandon Banks 349-14-03309 09-09 Hazen Street East Elmhurst, NY 11370 Hirving Ayala, Jr. 14R0912 Mohawk Correctional Facility 6514 Rt. 26 P.O. Box 8451 Rome, NY 13442 Franklin William Gomez 13R2797 Mohawk Correctional Facility 6514 Rt. 26 PO Box 8451 Rome, NY 13442 Franklin Gomez 241-12-10225 09-09 Hazen St East Elmhurst, NY 11370 Adam M. Amsel 14R0896 One Correction Way Ogdensburg, NY 13669 Clarence Douglas Elder, Jr. 13-R-2968 One Correction Way Ogdensburg, NY 13669 Prince A. Milliner 12R3683 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669-2288 Bryan Keith McClary 14-A-1530 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Anton Smith 14R0949 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Walter Dais 13R1910 Odgensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Dwayne Nathaniel Davis, Jr. 13R0610 Ogdensburg Correctional Facility One Correction Way Ogdensburg,, NY 13669 Jamel Purnell 10-A-0030 Groveland Correctional Facility Route 36 Sonyea Road Sonyea, NY 14556-0001 Isaac Middleton 1132 Liberty Avenue #2 Brooklyn, NY 11208 Henry Morel 14R0283 One Correction Way Odsenburg, NY 13669 Nathaniel Urena One Correction Way Odensburg, NY 13669 Feroz Khan 13R1041 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jaquan Watson 13R2274 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Dennis Berry 13R0990 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Darren Smith 120 Aldrich Street Apt. 21G Bronx, NY 10475 Juan Bannister 14R0784 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Gregory J. Graham 13R0688 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Angel Hernandez 14A1308 Attica Correctional Facility Attica, NY 14011 Jorge Luis Reyes 12R1907 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Lorell Purdie 14R1071 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Carlos Monoz 13R3504 Ogdensburg One Correction Way Ogdensburg, NY 13669 Anthony Cooke 11R2768 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669 Jimmy FanFan 14R0662 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Edwin Santiago 13R3510 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jose Valentin 13R0680 Ogdensburg Correctional Way One Correction Way Ogdensburg, NY 13669 Laurence P. Kearns 13R3546 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jose Colon 14R1165 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Michael White 13R03659 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Miguel Adrian-Reyes 14R0840 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Francisco Serrano 13R2358 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 John Hughes 13A3597 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Kenneth Davis 14A1526 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Esteban Herrera aka: Steven Herrera 13R3014 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Arnold Diaz 14R1058 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Ezra Woods 14R1088 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Jamel Clark 14R0661 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669 Jovanny Aracena 14R0855 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Terrell Aiken 12R3300 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Hakeem Smith 12R2413 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Christopher Daniels 14R0936 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Christopher P. Fusco 11-A-4987 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Sean Smith aka:Shawn Smith 13R1873 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Michael Science Brown 13R0091 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Walter Peterson 13R2525 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Anthony Diaz 14R0902 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Andy Petithomme 12R3813 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Mayko Morena 441-13-08118 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 Luis A. Victor 14R0438 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. (ca)
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Filing 63
RESPONSE TO ORDER TO SHOW CAUSE re: (8 in 7:14-cv-05905-CS, 37 in 7:13-cv-06095-CS-PED) Order to Show Cause. Document filed by Bryan Keith McClary. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05905-CS (lnl)
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Filing 62
CERTIFICATE OF SERVICE of Summary Judgment Motion served on Malik Rahman on August 29, 2014. Service was made by mail. Document filed by Dora Schriro. (Porter, Eric)
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Filing 61
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small handful of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss inMiddleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 8/29/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. Copies Mailed By Chambers. (lnl)
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Filing 60
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 8/29/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(lnl)
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Filing 59
RESPONSE TO ORDER TO SHOW CAUSE re: #43 Order to Show Cause. Document filed by Walter Dais. (Docketed in Case No. 14-cv-5993 DE#11) (sc) Modified on 9/2/2014 (lnl).
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Filing 58
RULE 56.1 STATEMENT. Document filed by Dora Schriro. (Porter, Eric)
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Filing 57
DECLARATION of Eric Porter in Support re: #54 MOTION for Summary Judgment .. Document filed by Dora Schriro. (Attachments: #1 Exhibit C, #2 Exhibit D)(Porter, Eric)
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Filing 56
DECLARATION of Dr. P. Andrew Karam, Ph.D, CHP in Support re: #54 MOTION for Summary Judgment .. Document filed by Dora Schriro. (Attachments: #1 Exhibit A)(Porter, Eric)
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Filing 55
MEMORANDUM OF LAW in Support re: #54 MOTION for Summary Judgment . . Document filed by Dora Schriro. (Porter, Eric)
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Filing 54
MOTION for Summary Judgment . Document filed by Dora Schriro.(Porter, Eric)
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Filing 53
LETTER from Adam Amsel; re: RESPONSE TO ORDER TO SHOW CAUSE. Document filed by Adam M. Amsel.(sc)
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Filing 52
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes, or allege that Plaintiffs' privacy rights have been violated by such searches and scans. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 8/27/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Filing 51
ORDER: In the past few days, the Court has received several Motions filed by individual Plaintiffs in this consolidated action, each of which repeats Plaintiffs' demands for monetary compensation for alleged violation of their constitutional rights and removal of the RadPro SecurPass body scanning device from New York City Department of Correction facilities. (See, e.g., 14-CV-5267 Doc. 9; 14-CV-5530 Doc. 8; 14-CV-5523 Doc. 9.) Such Motions are without merit; the relief being sought can only be awarded, if at all, at the conclusion of these cases after Plaintiffs have either been granted summary judgment on undisputed facts or proven their allegations by a preponderance of the evidence after trial. Accordingly, all Plaintiffs are hereby ORDERED not to file Motions seeking only the relief sought in the Complaints without a good faith basis for requesting such relief by motion at this preliminary stage. These matters are all explained in the Court's Pro Se Manual, copies of which can be obtained by writing to the Clerk of Court. SO ORDERED. (Signed by Judge Cathy Seibel on 8/27/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Filing 50
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. Plaintiffs allege in their complaints that use of the RadPro SecurPass X-ray body scanning equipment ("SecurPass") at these facilities for security purposes violates their constitutional rights in various ways. In this member case, Plaintiff pro se John Hughes alleges that the Department of Correction's practice of having inmates strip naked to be scanned by the SecurPass device violates his privacy rights and amounts to abuse of authority. (See Complaint, 14-CV-6423 Doc. 1, at 3, 5.) The Supreme Court has held that a policy of strip-searching all pre-trial detainees upon entering a general population facility does not run afoul of the inmates' constitutional rights. See Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1523 (2012); accord Vaughn v. Strickland, No. 12-CV-2696, 2013 WL 3481413 (S.D.N.Y. July 11, 2013) (absent allegations of sexual abuse, strip searches and visual body cavity inspections as part of jail intake procedures do not violate the Fourth, Eighth, or Fourteenth Amendments); Israel v. City of N.Y., No. 11-CV-7726, 2012 WL 4762082 (S.D.N.Y. Oct. 5, 2012) (practice of regularly requiring inmates to submit to visual strip searches upon entering jail facility does not violate inmates' rights). Furthermore, the Prison Litigation Reform Act, 42 U.S.C. 1997e(a), requires prisoners to administratively exhaust any claims regarding prison conditions through the inmate grievance process before filing a complaint in federal court. A claim that the facility's strip search policy violates an inmate's constitutional rights is covered by this provision, but Plaintiff here does not allege that he filed any grievance regarding strip searches, let alone exhausted the grievance process. See Leon v. City of N.Y., No. 13-CV-5407, 2014 WL 3408206, at *3-4 (S.D.N.Y. July 10, 2014); Esquilin v. Schriro, No. 13-CV-3724, 2014 WL 2795408, at *4 (S.D.N.Y. June 19, 2014). Accordingly, it appears to the Court as if this Complaint fails to state a claim on which relief can be granted. Therefore, Plaintiff is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, why his case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. If Plaintiff believes that he can state a valid claim by providing more detailed factual allegations, Plaintiff may explain in his response what facts he would add to an Amended Complaint. If Plaintiff fails to submit a timely response to this Order to Show Cause, the Complaint will be dismissed for the reasons stated herein. A copy of this Order to Show Cause and any unpublished cases cited herein will be mailed to Plaintiff from Chambers. SO ORDERED. (Signed by Judge Cathy Seibel on 8/27/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-06423-CS. Copies Mailed By Chambers. (lnl)
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Filing 49
ORDER: The original Complaint in this case provided no detail as to how frequently Plaintiff was scanned by the SecurPass scanning device. (See 14-CV-5989 Doc. 1.) Accordingly, on August 19, 2014, this Court ordered Plaintiff pro se Anton Smith to show cause as to why his case should not be dismissed under the analysis laid out in the Court's Opinion and Order in Middleton v. City of N.Y., No. 13-CV-8441. (13-CV-6095 Doc. 33.) The next day, Plaintiff filed an Amended Complaint. (14-CV-5989 Doc. 9.) In that amended pleading, Plaintiff states that from October 2013 to March 2014, "I worked in the mess hall at MDC for the above officer and after work she took me and several other inmates [through] the secure body pad scanner." (Id. at 2.) The Amended Complaint does not provide any further detail as to how frequently Plaintiff was scanned, and whether the pleading states a claim on which relief can be granted turns, in part, on this missing information. It is possible that Plaintiff was on a daily work assignment and was therefore scanned on a daily basis. Such an allegation would appear to bring this case within the analysis laid out in the Court's Opinion in Rahman v. Schriro, No. 13-CV-6095, (13-CV-6095 Doc. 27), rather than the analysis laid out in the Opinion in Middleton v. City of N.Y., No. 13-CV-8441, (13-CV-6095 Doc. 33). Accordingly, Plaintiff is hereby ORDERED to clarify, by letter filed no later than thirty days from the date of this Order, how often he was scanned during the relevant time period. The Court's previous Order to Show Cause in this case, (13-CV-6095 Doc. 37; 14-CV-5989 Doc. 8), is hereby STAYED until Plaintiff files a response to this Order. If Plaintiff fails to file a timely response, the case may be dismissed under Rule 12(b)(6) for failure to state a claim or under Rule 41(b) for failure to prosecute. SO ORDERED. (Signed by Judge Cathy Seibel on 8/27/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05989-CS (lnl)
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Filing 48
ORDER denying [DE# 9 in Case No. 14-CV-5523] Motion: Plaintiff's Motion is DENIED. The Clerk of Court is respectfully directed to terminate the pending Motion. (14-CV-5523 Doc. 9.) SO ORDERED. (Signed by Judge Cathy Seibel on 8/27/2014) (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (11 in 7:14-cv-05523-CS, 9 in 7:14-cv-04856-CS, 11 in 7:14-cv-05530-CS, 18 in 7:14-cv-00692-CS, 6 in 7:14-cv-06037-CS, 6 in 7:14-cv-06222-CS, 8 in 7:14-cv-05996-CS, 22 in 7:13-cv-08441-CS, 8 in 7:14-cv-06287-CS, 8 in 7:14-cv-06139-CS, 8 in 7:14-cv-05994-CS, 6 in 7:14-cv-06275-CS, 8 in 7:14-cv-05521-CS, 14 in 7:14-cv-03962-CS, 10 in 7:14-cv-05105-CS, 6 in 7:14-cv-06163-CS, 9 in 7:14-cv-05992-CS, 9 in 7:14-cv-05905-CS, 12 in 7:14-cv-04874-CS, 11 in 7:14-cv-05267-CS, 10 in 7:14-cv-06225-CS, 14 in 7:14-cv-00677-CS, 15 in 7:14-cv-00843-CS, 51 in 7:13-cv-06095-CS-PED, 18 in 7:14-cv-00187-CS, 8 in 7:14-cv-05906-CS, 4 in 7:14-cv-06941-VB, 8 in 7:14-cv-06137-CS, 16 in 7:14-cv-03197-CS, 8 in 7:14-cv-06245-CS, 8 in 7:14-cv-06592-CS, 8 in 7:14-cv-06293-CS, 8 in 7:14-cv-06208-CS, 6 in 7:14-cv-06161-CS, 10 in 7:14-cv-05993-CS, 7 in 7:14-cv-05936-CS, 6 in 7:14-cv-06521-CS, 8 in 7:14-cv-06470-CS, 22 in 7:14-cv-00849-CS, 11 in 7:14-cv-05924-CS, 9 in 7:14-cv-06223-CS, 6 in 7:14-cv-06599-CS, 8 in 7:14-cv-06516-CS, 6 in 7:14-cv-05200-CS, 6 in 7:14-cv-06808-CS, 8 in 7:14-cv-06291-CS, 13 in 7:14-cv-04855-CS, 8 in 7:14-cv-05997-CS, 8 in 7:14-cv-06423-CS, 9 in 7:14-cv-06036-CS, 11 in 7:14-cv-05989-CS, 8 in 7:14-cv-06153-CS) Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Received returned mail re: #35 Order. Mail was addressed to Malik Rahman c/o Samanthia Harris 1400 East New York Ave. Brooklyn, NY 11212 and was returned for the following reason(s): Insufficient Address - Unable to Forward. (ca) Modified on 8/27/2014 (ca).
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Filing 47
ORDER: Plaintiff pro se Hirving Ayala, Jr. has submitted a letter, (14-CV-4855 Doc. 10), in which he argues that the City of New York has defaulted on its obligation to comply with the Court's July 23, 2014 Order, (14-CV-4855 Doc. 7), which was issued pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997). Plaintiff asserts that more than thirty days have passed without response from the City. But the Valentin Order in this case gave the City sixty days to respond not thirty days as Plaintiff alleges. Accordingly, the time for the City to file a response has not yet elapsed. In any event, earlier today the Court issued an Order to Show Cause, (13-CV-6095 Doc. 43; 14-CV-4855 Doc. 11), directing Plaintiff to explain why his case should not be dismissed under the analysis laid out in the Court's Opinion and Order in Middleton v. City of N.Y., No. 13-CV-8441. (13-CV-6095 Doc. 33.) In light of that Order, the City's obligation to respond to the Court's previous Valentin Order is hereby STAYED until such time as the Court rules on whether Plaintiff's Complaint states a claim on which relief can be granted. If Plaintiff wishes to amend his complaint, he may explain in his response to the Order to Show Cause what additional facts he would include in an Amended Complaint. Plaintiff's response to the Order to Show Cause is due September 26, 2014. SO ORDERED. (Signed by Judge Cathy Seibel on 8/26/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-04855-CS. Copies Mailed By Chambers. (lnl)
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Filing 46
ORDER: On August 19, 2014, this Court ordered Plaintiff pro se Brandon Banks to show cause as to why his case should not be dismissed under the analysis laid out in the Court's Opinion and Order in Middleton v. City of N.Y., No. 13-CV-8441. (13-CV-6095 Doc. 33.) That same day, Plaintiff filed a Second Amended Complaint. (14-CV-3962 Doc. 12.) The Court has reviewed the Second Amended Complaint, and it appears that Plaintiff's allegations remain insufficient to state a claim for the reasons set forth in the Middleton Opinion. Accordingly, the previous Order to Show Cause remains in force. Plaintiff's response to that Order is due September 19, 2014. SO ORDERED. (Signed by Judge Cathy Seibel on 8/26/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-03962-CS(lnl)
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Filing 45
ORDER: Plaintiff pro se Prince A. Milliner has filed a Motion, pursuant to Federal Rule of Civil Procedure 54(b), seeking entry of final judgment. (See 14-CV-5530 Doc. 8 at 1-2.) In his Affirmation in Support, Plaintiff reiterates the claims he is bringing in his Complaint namely, that being strip searched and then scanned by the RadPro SecurPass scanning device violates Plaintiff's constitutional rights. (See id. at 3-4.) Rule 54(b) addresses entering final judgment when some, but not all, of the claims in the case have been fully adjudicated. In this case, no claims have yet been fully adjudicated, so a request for entry of final judgment is premature. To the extent Plaintiff's Motion can be construed as one seeking summary judgment under Rule 56, such a motion is also not appropriate at this time; the Court has ordered Plaintiff to show cause why his case should not be dismissed under Rule 12(b)(6) for failure to state a claim. Accordingly, Plaintiff's Motion is DENIED without prejudice to renewal should the occasion for such a motion arise. The Clerk of Court is respectfully directed to terminate the pending Motion. (14-CV-5530 Doc. 8.) SO ORDERED. (Signed by Judge Cathy Seibel on 8/26/2014) (lnl)
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Filing 44
ORDER: Plaintiff pro se Adam M. Amsel has filed a Motion, purportedly pursuant to Federal Rules of Civil Procedure 3 and 4, seeking "monetary relief." (See 14-CV-5267 Doc. 9 at 1.) In his Affirmation in Support, Plaintiff repeats the claim he is bringing in his Complaint namely, that being scanned by the RadPro SecurPass scanning device exposed Plaintiff to harmful radiation in violation of his constitutional rights. (See id. at 2-4.) Rule 3 governs commencement of an action, and Rule 4 governs issuance and service of the summons. Plaintiff's Motion thus appears to simply be a reiteration of his demand for compensation for the harm he claims to have suffered. Such relief is granted, if at all, only at the conclusion of the case, and not by motion before Defendants have appeared. To the extent Plaintiff's Motion can be construed as one seeking summary judgment, such a motion is also not appropriate at this time; the Court has ordered Plaintiff to show cause why his case should not be dismissed under Rule 12(b)(6) for failure to state a claim.Accordingly, Plaintiff's Motion is DENIED. The Clerk of Court is respectfully directed to terminate the pending Motion. (14-CV-5267 Doc. 9.) SO ORDERED. (Signed by Judge Cathy Seibel on 8/26/2014) (lnl)
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Filing 43
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small handful of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff whobelieves in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 8/26/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-04855-CS, 7:14-cv-05521-CS (lnl)
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Filing 42
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege that they are scanned on a frequent and recurring basis, such as when going to and coming from their daily work assignments. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated May 27, 2014, I denied (in relevant part) a Motion to Dismiss in Rahman v. Schriro, No. 13-CV-6095, the lead case in this consolidated action. (See 13-CV-6095 Doc. 27.) That Opinion (the "Rahman Opinion") held based on the limited factual information of which judicial notice may be taken in connection with a Motion to Dismiss that allegations that an inmate is subjected to multiple SecurPass scans on a daily basis "suggest with sufficient plausibility that Plaintiff may be able to demonstrate through discovery that a serious present injury or a future risk of serious injury exists." (Rahman Opinion at 10 (internal quotation marks and citation omitted).) The Rahman Opinion observed, however, that according to information published by the SecurPass manufacturer (which was submitted by Defendants but which I excluded for purposes of the Motion to Dismiss), it appeared that the SecurPass system does not in fact emit dangerous levels of radiation, even if an individual is scanned thousands of times per year. (See id. at 18 and n.4.) Because that issue was potentially dispositive, I therefore ordered the parties to engage in a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. (Id.) At the close of that period, Defendants could make a Motion for Summary Judgment, and if any part of the case survived that Motion, full discovery would be ordered. (Id.) The complaints in the above listed cases include allegations similar to those in the Rahman case: namely, that Plaintiffs are subjected to SecurPass scans on a frequent and recurring basis. It appears to the Court that under the governing law and the analysis laid out in the Rahman Opinion, these Complaints would not be subject to dismissal on the basis that they fail to allege an objectively sufficiently serious risk to Plaintiffs health. Therefore, the parties in the cases listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days after service or waiver of service as to Defendants, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health, to be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Signed by Judge Cathy Seibel on 8/26/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05523-CS (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (42 in 7:13-cv-06095-CS-PED, 8 in 7:14-cv-05523-CS) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05523-CS(lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (43 in 7:13-cv-06095-CS-PED, 11 in 7:14-cv-04855-CS, 5 in 7:14-cv-05521-CS) Order to Show Cause, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-04855-CS, 7:14-cv-05521-CS (lnl)
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Filing 41
ORDER TO SHOW CAUSE Therefore, the parties in the case listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order as to Plaintiff, and thirty days afterservice or waiver of service as to Defendants, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmates future health, to be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court thatproceeding in this fashion would be more efficient than entertaining many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to each of the Plaintiffs in the cases to which this Order applies. (Signed by Judge Cathy Seibel on 8/25/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05992-CS Copies Sent By Chambers. (fk)
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Filing 40
ORDER TO SHOW CAUSE Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than thirty days from the date of this Order, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim byproviding more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the leadcase and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. (Signed by Judge Cathy Seibel on 8/25/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. Copies Sent By Chambers. (fk)
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Filing 39
CONSOLIDATION ORDER: Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the In re RadPro SecurPass Scanner Cases onsolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidatedaction and in each of the cases listed above. (14-CV-5105 Hernandez v. Schriro14-CV-5906 Reyes v. Rikers Island Detention Ctr. 14-CV-5936 Purdie v. Manhattan Detention Ctr. 14-CV-5992 Monoz v. Rikers Island Prison 14-CV-6036 Cooke v. Dept of Correction 14-CV-6137 FanFan v. Doe 14-CV-6139 Santiago v. Rikers Island Prison 14-CV-6153 Valentin v. Rikers Island Prison 14-CV-6208 Kearns v. Doe 14-CV-6245 Colon v. Rikers Island Prison 14-CV-6287 White v. Rikers Island Prison 14-CV-6291 Adrian-Reyes v. N.Y.C. Dept of Correction 14-CV-6293 Serrano v. Rikers Island Prison 14-CV-6423 Hughes v. Rikers Island 14-CV-6470 Davis v. Rikers Island Prison 14-CV-6516 Herrera v. Rikers Island Prison 14-CV-6592 Diaz v. N.Y.C. Dept of Correction) (Signed by Judge Cathy Seibel on 8/22/2014) (fk)
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Transmission to Docket Assistant Clerk. Transmitted re: (6 in 7:14-cv-06592-CS) Consolidation Order to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (mml)
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Received returned mail re: #31 Order. Mail was addressed to Charlie Ramos 349-13-16556 G.R.V.C. 09-09 Hazen Street East Elmhurst, NY 11370 and was returned for the following reason(s): ROR 04/22/2014 RTS. (ca)
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Received returned mail re: #32 Order. Mail was addressed to Malik Rahman c/o Samanthia Harris 1400 East New York Ave. Brooklyn, NY 11212 and was returned for the following reason(s): Insufficient Address - Unable to Forward. (ca)
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Filing 38
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege that they are scanned on a frequent and recurring basis, such as when going to and coming from their daily work assignments. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated May 27, 2014, I denied (in relevant part) a Motion to Dismiss in Rahman v. Schriro, No. 13-CV-6095, the lead case in this consolidated action. (See 13-CV-6095 Doc. 27.) That Opinion (the "Rahman Opinion") held based on the limited factual information of which judicial notice may be taken in connection with a Motion to Dismiss that allegations that an inmate is subjected to multiple SecurPass scans on a daily basis "suggest with sufficient plausibility that Plaintiff may be able to demonstrate through dis" (Rahman Opinion at 10 (internal quotation marks and citation omitted).) The Rahman Opinion observed, however, that according to information published by the SecurPass manufacturer (which was submitted by Defendants but which I excluded for purposes of the Motion to Dismiss), it appeared that the SecurPass system does not in fact emit dangerous levels of radiation, even if an individual is scanned thousands of times per year. (See id. at 18 and n.4.) Because that issue was potentially dispositive, I therefore ordered the parties to engage in a sixty-day period of limited discovery solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health. (Id.) At the close of that period, Defendants could make a Motion for Summary Judgment, and if any part of the case survived that Motion, full discovery would be ordered. (Id.) The complaints in the above listed cases include allegations similar to those in the Rahman case: namely, that Plaintiffs are subjected to SecurPass scans on a frequent and recurring basis. It appears to the Court that under the governing law and the analysis laid out in the Rahman Opinion, these Complaints would not be subject to dismissal on the basis that they fail to allege an objectively sufficiently serious risk to Plaintiffs health. Therefore, the parties in the cases listed above are hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than September 19, 2014, as to why the Court should not order a sixty-day period of limited discovery, solely on the issue of whether the cumulative effect of regular SecurPass scans presents a substantial risk of serious harm to an inmate's future health, to be followed by an opportunity for Defendants to move for summary judgment on this issue, if appropriate. Because this issue is potentially dispositive, it is the opinion of the Court that proceeding in this fashion would be more efficient than entertaining many separate Motions to Dismiss regarding alleged individualized deficiencies in each Complaint. Any Motions to Dismiss that are currently pending in the above listed cases are hereby DENIED without prejudice to renewal if, after receiving the parties' submissions, the Court decides in any individual case not to proceed with a period of limited discovery as described above. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption, and terminate any pending Motions to Dismiss in these cases. Copies of this Order, the Rahman Opinion, and any unpublished cases cited therein will be mailed to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. (Show Cause Response due by 9/19/2014) Motions terminated: (9 in 7:14-cv-00843-CS) MOTION to Dismiss, (14 in 7:14-cv-00849-CS) MOTION to Dismiss, (12 in 7:14-cv-03197-CS) MOTION to Dismiss, (11 in 7:14-cv-00692-CS) MOTION to Dismiss. (Signed by Judge Cathy Seibel on 8/19/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(lnl)
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Filing 37
ORDER TO SHOW CAUSE: In this consolidated action, Plaintiffs are all inmates or former inmates at facilities run by the New York City Department of Correction. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the RadPro SecurPass X-ray body scanning equipment ("SecurPass") used at these facilities for security purposes. In the above-listed cases, Plaintiffs allege either (a) that they have been scanned a small handful of times; (b) that they are infrequently scanned, such as when traveling to and from court appearances; or (c) provide no details as to how frequently they are scanned. To establish a constitutional violation based on a claim that prison officials placed an inmate's health in danger, the inmate must show that the officials acted with "deliberate indifference" to a condition of confinement that is sure or very likely to cause serious harm. See Florio v. Canty, 954 F. Supp. 2d 227, 233 (S.D.N.Y. 2013) (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)). This deliberate indifference standard is evaluated under a two-pronged test comprised of both objective and subjective components. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). First, "the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). By Opinion and Order dated August 13, 2014, I granted a Motion to Dismiss in Middleton v. City of N.Y., No. 13-CV-8441, a member case in this consolidated action. (See 13-CV-6095 Doc. 33; 13-CV-8441 Doc. 20.) That Opinion (the "Middleton Opinion") held that the complaint in that case failed to state a claim on which relief can be granted, because the factual allegations that the plaintiff was scanned by a SecurPass machine five or ten times in total failed to amount to a sufficiently serious deprivation under the objective prong of the deliberate indifference standard. The Middleton Opinion observed, based in part on information regarding security scanning devices and radiation dosages published by the United States Environmental Protection Agency and Food and Drug Administration, that the amount of radiation emitted by a small number of SecurPass scans is insignificant compared to the amount of radiation the average person absorbs in daily life. The complaints in the above listed cases either (a) include allegations similar to those in the Middleton case, namely, that Plaintiffs were each forced to undergo a small number of SecurPass scans, or (b) contain no information as to how frequently Plaintiffs are subjected to scans. None of these Plaintiffs allege, as is necessary to state a plausible claim, that they are required to submit to SecurPass scans with any substantial frequency, or that they have already been subjected to a large number of scans. It appears to the Court that under the governing law and the analysis laid out in the Middleton Opinion, these Complaints also fail to state a claim on which relief can be granted. Therefore, each Plaintiff listed above is hereby ORDERED TO SHOW CAUSE in writing, filed with the Court no later than September 19, 2014, as to why his or her case should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim as described in the Middleton Opinion. Any Plaintiff who believes in good faith, after reading the Middleton Opinion, that he or she can state a claim by providing more detailed factual allegations may explain in his or her response what facts he or she would add in an Amended Complaint. Any case in which a Plaintiff fails to file a timely response to this Order will be dismissed for the reasons set forth in the Middleton Opinion. The Clerk of Court is respectfully directed to docket this Order to Show Cause in the lead case and in each of the cases listed in the caption. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed from Chambers to each of the Plaintiffs in the cases to which this Order applies. SO ORDERED. Show Cause Response due by 9/19/2014. (Signed by Judge Cathy Seibel on 8/19/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(lnl)
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Filing 36
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at various jail and prison facilities in the Southern District of New York. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 8/19/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:14-cv-05994-CS, 7:14-cv-05996-CS. (lnl)
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Received returned mail re: #36 Order. Mail was addressed to Prince A. Milliner 12R3683 Ogdensburg Corr. Facility One Correction Way Ogdensburg, NY 13669-2288 and was returned for the following reason(s): Insufficient Address - Unable to Forward. (ca)
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Filing 35
ORDER: for the reasons set forth in the Middleton Opinion, Defendants' Motion to Dismiss is GRANTED, and the Complaint is DISMISSED. The Clerk of Court is respectfully directed to terminate the pending Motion. (14-CV-677 Doc. 8.) If Plaintiff believes in good faith, after reading the Middleton Opinion, that he can state a valid claim by providing more detailed factual allegations, Plaintiff may write a letter to the Court within thirty days explaining what facts he would add in an Amended Complaint, and the Court will determine whether leave to amend is appropriate. If no such letter is received, the case will be closed. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed to Plaintiff from Chambers. SO ORDERED. (Signed by Judge Cathy Seibel on 8/18/2014) Copies Mailed By Chambers. (lnl)
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Filing 34
ORDER: for the reasons set forth in the Middleton Opinion, Defendants' Motion to Dismiss is GRANTED, and the Complaint is DISMISSED. The Clerk of Court is respectfully directed to terminate the pending Motion. (14-CV-187 Doc. 11.) If Plaintiff believes in good faith, after reading the Middleton Opinion, that he can state a valid claim by providing more detailed factual allegations, Plaintiff may write a letter to the Court within thirty days explaining what facts he would add in an Amended Complaint, and the Court will determine whether leave to amend is appropriate. If no such letter is received, the case will be closed. Copies of this Order, the Middleton Opinion, and any unpublished cases cited therein will be mailed to Plaintiff from Chambers. SO ORDERED. (Signed by Judge Cathy Seibel on 8/18/2014) Copies Mailed By Chambers. (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: #34 Order, to the Docket Assistant Clerk for case processing. (lnl)
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Received returned mail re: #35 Order. Mail was addressed to Mario Valdiviezo and was returned for the following reason(s): Location and ID Do Not Match. (ca)
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Mailed a copy of #35 Order, to Malik Rahman c/o Samanthia Harris 1400 East New York Ave. Brooklyn, NY 11212. (ca)
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Transmission to Docket Assistant Clerk. Transmitted re: #35 Order, to the Docket Assistant Clerk for case processing. (lnl)
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Filing 33
OPINION AND ORDER: Defendants' Motion to Dismiss is GRANTED, and Plaintiff's claims are DISMISSED with prejudice. The Clerk of Court is respectfully directed to terminate the pending Motion, (Doc. 12), and close the case. 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 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). SO ORDERED. (Signed by Judge Cathy Seibel on 8/13/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED, 7:13-cv-08441-CS(lnl)
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Mailed a copy of (7 in 7:14-cv-06223-CS) Order, to Malik Rahman c/o Samanthia Harris 1400 East New York Ave. Brooklyn, NY 11212 / Henry Morel 14R0283 One Correction Way Odsenburg, NY 13669 / Nathaniel Urena One Correction Way Odensburg, NY 13669 / Feroz Khan 13R1041 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 / Jaquan Watson 13R2274 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669/ Dennis Berry 13R0990 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669 / Darren Smith 09A6008 Ogdensburg Correctional Facility One Correction Way Ogdensburg, NY 13669. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al.(ca)
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Filing 32
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at various jail and prison facilities in the Southern District of New York. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. By Order dated August 6, 2014, the Court consolidated several similar cases for trial pursuant under Rule 42(a). (See Rahman v. Schriro, No. 13-CV-6095, Doc. 31.) These cases involve common questions of fact with the consolidated action, such as the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. These cases also involve common questions of law with the consolidated action, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Adding these cases to the consolidated action would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, pursuant to Rule 42(a), the above listed cases are hereby added to the "In re RadPro SecurPass Scanner Cases" consolidated action under Docket No. 13-CV-6095 for all purposes. The Clerk of Court is respectfully directed to docket this Order in the consolidated action and in each of the cases listed above. SO ORDERED. (Signed by Judge Cathy Seibel on 8/11/2014) Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: (4 in 7:14-cv-05521-CS, 32 in 7:13-cv-06095-CS-PED, 7 in 7:14-cv-06223-CS, 7 in 7:14-cv-06225-CS, 9 in 7:14-cv-05924-CS, 4 in 7:14-cv-05200-CS) Consolidation Order, to the Docket Assistant Clerk for case processing. Filed In Associated Cases: 7:13-cv-06095-CS-PED et al. (lnl)
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Filing 31
CONSOLIDATION ORDER: In this series of cases, Plaintiffs are all inmates or former inmates at various jail and prison facilities in the Southern District of New York. The Complaints allege that Plaintiffs have been exposed to harmful levels of radiation emitted by the body scanning equipment used at these facilities for security purposes. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court on motion or sua sponte may order the consolidation of related cases. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999). If the actions "involve a common question of law or fact," the Court may "consolidate the actions" or "issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Before issuing such a consolidation order, the Court must consider both "equity and judicial economy," and "efficiency cannot be permitted to prevail at the expense of justice." Devlin, 175 F.3d at 130. These cases involve common questions of fact regarding, for example, the amount and type of radiation emitted by the scanning equipment and whether such levels of radiation can be harmful to humans. The cases also involve common questions of law, such as what remedies are available under the Prison Litigation Reform Act, 42 U.S.C. 1997e. Consolidation of these cases all of which have already been assigned to my docket as related to the first such case, Rahman v. Schriro, No. 13-CV-6095 would clearly serve the interests of judicial economy and would not cause any discernable prejudice to any party. Accordingly, the above listed cases are hereby consolidated under Docket No. 13-CV-6095 for all purposes pursuant to Rule 42(a). The Clerk of Court is respectfully directed to docket this Order in each of the above listed cases. SO ORDERED. (Signed by Judge Cathy Seibel on 8/6/2014) (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: #31 Consolidation Order, to the Docket Assistant Clerk for case processing. (lnl)
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CONSOLIDATED MEMBER CASE: Create association to 7:13-cv-06095-CS-PED. (lnl)
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Mailed a copy of #31 Order, to Malik Rahman represented byMalik Rahman c/o Samanthia Harris 1400 East New York Ave. Brooklyn, NY 11212. (ca)
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Filing 30
PRO SE MEMORANDUM re: CHANGE OF ADDRESS for Malik Rahman. New Address: c/o Samanthia Harris, 14 East New York Ave., Brooklyn, New York, 11212. (sc)
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Received returned mail re: #27 Memorandum & Opinion,,, Mail Order by Certified Mail. Mail was addressed to Malik Rahman 141-12-02168 Anna M. Kross Correctional Facility 18-18 Hazen Street East Elmhurst, NY 11370 and was returned for the following reason(s): Paroled. (ca)
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***DELETED DOCUMENT. Deleted document number #30 Letter from Franklin Gomez dated 6/10/2014. The document was incorrectly filed in this case. (sac)
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Filing 29
MEMO ENDORSEMENT on #28 PRO SE MEMORANDUM dated 5/30/14 re: CHANGE OF ADDRESS for Malik Rahman. New Address: c/o Cynthia Johnson, 3414 Olinville Avenue, Bronx, New York, 10467. ENDORSEMENT: The Clerk of Court shall update Plaintiff's address and mail a copy of the Court's recent order, Doc. 27, to plaintiff at his specified address. So Ordered. (Signed by Judge Cathy Seibel on 6/5/2014) The Clerks Office Has Mailed Copies. (lnl)
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***Staff Notes: Document Nos. 27 7 28 Mailed to Malik Rahman, 141-12-02168C/O Cynthia Johnson, 3414 Olinville Avenue,Bronx, NY 10467; on 6/6/2014. (lnl)
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Filing 28
PRO SE MEMORANDUM dated 5/30/14 re: CHANGE OF ADDRESS for Malik Rahman. New Address: c/o Cynthia Johnson, 3414 Olinville Avenue, Bronx, New York, 10467. (sc)
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Filing 27
OPINION AND ORDER: the Defendants' motion to dismiss is granted in part and denied in part. Plaintiff's excessive force claim is dismissed for failure to state a claim upon which relief may be granted, and Plaintiff's claims against Defendants Lee, Levy, and Othman are dismissed under the doctrine of qualified immunity. Plaintiff's claims against Defendants Rivera, Russo, and Pervus are dismissed without prejudice to Plaintiff's right to amend the complaint at a later date to allege their personal involvement. In all other respects, the motion is denied. The Clerk of Court is respectfully requested to terminate the pending motion. (Doc. 15.) SO ORDERED. (Signed by Judge Cathy Seibel on 5/27/2014) (lnl)
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Transmission to Docket Assistant Clerk. Transmitted re: #27 OPINION AND ORDER, to the Docket Assistant Clerk for case processing. (lnl)
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Mailed a copy of #27 Memorandum & Opinion, to Malik Rahman 141-12-02168 Anna M. Kross Correctional Facility 18-18 Hazen Street East Elmhurst, NY 11370 (nt)
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***DELETED DOCUMENT. Deleted document number 26 MEMO ENDORSEMENT. The document was incorrectly filed in this case. (lnl)
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Filing 25
LETTER addressed to Judge Cathy Seibel from Eric Porter dated March 14, 2014 re: Possible Case Relatedness. Document filed by Lee, Levy, Othman, Pervus, Luis Rivera, Russo, Dora Schriro.(Porter, Eric)
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Filing 24
MEMO ENDORSEMENT on DEFAULT JUDGMENT. ENDORSEMENT: Application Denied. So Ordered. (Signed by Judge Cathy Seibel on 1/27/2014) The Clerks Office Has Mailed Copies. (lnl)
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Filing 23
CERTIFICATE OF SERVICE of Reply Memorandum of Law served on Malik Rahman on 1/9/2014. Service was made by mail. Document filed by Lee, Levy, Othman, Pervus, Luis Rivera, Russo, Dora Schriro. (Porter, Eric)
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Filing 22
REPLY MEMORANDUM OF LAW in Support re: #15 MOTION to Dismiss.. Document filed by Lee, Levy, Othman, Pervus, Luis Rivera, Russo, Dora Schriro. (Porter, Eric)
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Filing 21
ORDER granting #20 Letter Motion for Extension of Time to File Response/Reply: Defendants' reply to Plaintiff's opposition to motion to dismiss due by 1/9/2014. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) Copies of Notice of Electronic Filing To Be Mailed By Clerks Office. (Seibel, Cathy)
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Filing 20
LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Cathy Seibel from Eric Porter dated December 30, 2013. Document filed by Lee, Levy, Othman, Pervus, Luis Rivera, Russo, Dora Schriro.(Porter, Eric)
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Mailed a copy of 21 Order on Motion for Extension of Time to File Response/Reply, to Malik Rahman 141-12-02168 Anna M. Kross Correctional Facility 18-18 Hazen Street East Elmhurst, NY 11370. (ca)
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Filing 19
AFFIRMATION IN OPPOSITION TO MOTION; re: #15 MOTION to Dismiss. Document filed by Malik Rahman. (sc) (Additional attachment(s) added on 12/23/2013: #1 Exhibit) (sc).
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Filing 18
CERTIFICATE OF SERVICE of Motion to Dismiss served on Malik Rahman on December 2, 2013. Service was made by Mail. Document filed by Lee, Levy, Othman, Pervus, Luis Rivera, Russo, Dora Schriro. (Porter, Eric)
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Filing 17
DECLARATION of Eric Porter in Support re: #15 MOTION to Dismiss.. Document filed by Lee, Levy, Othman, Pervus, Luis Rivera, Russo, Dora Schriro. (Attachments: #1 Exhibit A, #2 Exhibit B)(Porter, Eric)
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Filing 16
MEMORANDUM OF LAW in Support re: #15 MOTION to Dismiss.. Document filed by Lee, Levy, Othman, Pervus, Luis Rivera, Russo, Dora Schriro. (Porter, Eric)
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Filing 15
MOTION to Dismiss. Document filed by Lee, Levy, Othman, Pervus, Luis Rivera, Russo, Dora Schriro.(Porter, Eric)
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Filing 14
AFFIRMATION of Service. Document filed by Malik Rahman. (lnl)
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Filing 13
LETTER from Malik Rahman, dated 10/31/2013, re: Plaintiff writes: I agree to have Hon. Paul E. Davison (Magistrate Judge), pursuant to 28 U.S.C. 636(c), presiding, not only to set the Schedule and resolve all Discovery disputes, but also to decide all Motions' and Conduct the Trial of the case. Document filed by Malik Rahman. (lnl)
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Filing 12
ORDER: In order to facilitate the progress of pre-trial discovery of this litigation in a just, speedy and inexpensive manner, to insure compliance with the case management plan, and to prevent the accumulation of unresolved discovery issues, the following procedures will be followed for the resolution of discovery disputes as set forth in this order. (Signed by Magistrate Judge Paul E. Davison on 10/25/2013) The Clerks Office Has Mailed Copies. (rj)
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Filing 11
ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non-dispositive pretrial motions, and settlement). Referred to Magistrate Judge Paul E. Davison. (Signed by Judge Cathy Seibel on 10/24/2013) The Clerks Office Has Mailed Copies. (lnl)
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Filing 10
LETTER addressed to Judge Cathy Seibel from Malik Rahman dated 10/10/2013 re: I ask humbly that you send an order to have me totally exempt from the "life threatening machine until the investigation/case is resolved". Document filed by Malik Rahman.(rj)
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Filing 9
NOTICE OF APPEARANCE by Eric Brent Porter on behalf of Luis Rivera, Dora Schriro. (Porter, Eric)
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Filing 8
WAIVER OF SERVICE RETURNED EXECUTED. Lee waiver sent on 9/30/2013, answer due 12/2/2013; Luis Rivera waiver sent on 9/30/2013, answer due 12/2/2013; Levy waiver sent on 9/30/2013, answer due 12/2/2013; Dora Schriro waiver sent on 9/30/2013, answer due 12/2/2013; Othman waiver sent on 9/30/2013, answer due 12/2/2013; Russo waiver sent on 9/30/2013, answer due 12/2/2013; Pervus waiver sent on 9/30/2013, answer due 12/2/2013. Document filed by Lee; Luis Rivera; Levy; Dora Schriro; Othman; Russo; Pervus. (Pinnock, Nadene)
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Filing 7
LETTER addressed to Judge Cathy Seibel from Malick Rahman, dated 9/19/2013, re: Plaintiff writes: Please allow me to apologize for sending you a correspondence Judge Cathy Seibel, however, upon receiving the documents you sent me I realized that on the document which listed ORDER OF SERVICE had the wrong name of Plaintiff on it so I felt sending you this correspondence would be the best course of action to resolve this error as expedient as feasible. Document filed by Malik Rahman. (lnl) Modified on 10/1/2013 (Rogers, Robert).
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Filing 6
ORDER OF SERVICE: Document 5 under docket number 13-CV-6095 (which erroneously listed the Plaintiff as Pedro Tavares rather than Malik Rahman) is hereby VACATED. The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Defendants commissioner Dora Schriro, Warden Luis Rivera, Deputy Warden Russo, Deputy, Security Pervus, Captain Lee, Captain Levy, and Officer Othman waive service of summons. SO ORDERED. Waiver of Service due by 10/21/2013. (Signed by Judge Cathy Seibel on 9/17/2013) The Clerks Office Has Mailed Copies. (lnl)
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Filing 5
***VACATED***ORDER OF SERVICE: The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Defendants commissioner Dora Schriro, Warden Luis Rivera, Deputy Warden Russo, Deputy of Security Pervus, Captain Lee, Captain Levy, and Officer Othman waive service of summons. SO ORDERED. Waiver of Service due by 10/15/2013. (Signed by Judge Cathy Seibel on 9/10/2013) The Clerks Office Has Mailed Copies. (lnl) Modified on 9/17/2013 to reflect that this order has been vacated by DE#6 (lnl).
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Mailed notice re: Notice of Case Assignment/Reassignment to the Plaintiff(s) of record. (sbr)
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Magistrate Judge Paul E. Davison is so designated. (pgu)
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NOTICE OF CASE ASSIGNMENT to Judge Cathy Seibel. Judge Unassigned is no longer assigned to the case. (pgu)
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Filing 3
ORDER GRANTING IFP APPLICATION: Leave to proceed in this Court without prepayment of fees is authorized. 28 U.S.C. 1915. (Signed by Judge Loretta A. Preska on 9/5/2013) (vj)
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Filing 2
COMPLAINT against Lee, Levy, Othman, Pervus, Luis Rivera, Russo, Dora Schriro. Document filed by Malik Rahman.(laq)
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Filing 1
REQUEST TO PROCEED IN FORMA PAUPERIS. Document filed by Malik Rahman.(laq)
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Case Designated ECF. (laq)
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