James v. Gage et al
| Travis James |
| Dana Gage, B. Furco and Abe Kanari |
| 1:2015cv00106 |
| January 6, 2015 |
| US District Court for the Southern District of New York |
| White Plains Office |
| Westchester |
| Kenneth M. Karas |
| Prison Condition |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
129
ORDER: The Court has been informed that the parties have reached a settlement in principle in this case. (Doc. 127). Accordingly, it is hereby ORDERED that this action is dismissed without costs and without prejudice to restoring the action to the Court's calendar, provided the application to restore the action is made within thirty (30) days of this Order. Any application to reopen filed after thirty (30) days from the date of this Order may be denied solely on that basis. Any pe nding motions are DISMISSED as moot, and all conferences are CANCELLED. The Clerk of the Court is respectfully directed to mail a copy of this Order, Doc. 127, and Doc. 128 to Plaintiff. (Signed by Judge Philip M. Halpern on 7/20/2021) (vfr) Transmission to Docket Assistant Clerk for processing.
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Filing
118
ORDER: The Court held an Initial Pretrial Telephone Conference at 09:30 a.m. on May 13, 2021. Counsel for Defendants and Plaintiff, proceeding pro se, appeared. A Civil Case Management Order, as well as an Order of Reference referring this matter to Magistrate Judge McCarthy, will be docketed separately Defense counsel is directed to mail a copy of this Order to Plaintiff and file proof of service on the docket. SO ORDERED (Signed by Judge Philip M. Halpern on 5/13/2021) (ks)
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Filing
115
ORDER : As set forth below, the motion for appointment of pro bono counsel is DENIED without prejudice to renew at a later date. While the Court's conclusion may well change as the action progresses, the Court does not find any circumstanc es warranting the appointment of pro bono counsel at this time. As such, Plaintiff's application for pro bono counsel is DENIED without prejudice to renew at a later stage in the proceedings. The Clerk of the Court is respectfully directed to mail a copy of this Order to Plaintiff. SO ORDERED (Signed by Judge Philip M. Halpern on 4/26/2021) (ks) Transmission to Docket Assistant Clerk for processing.
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Filing
110
ORDER denying without prejudice 108 Motion for Judgment on the Pleadings. In light of the foregoing, Thayer's pending motion for judgment on the pleadings is DENIED without prejudice. Thayer and Furco are directed to serve and file a let ter by March 19, 2021 advising: (1) whether Thayer wishes to refile his Rule 12(c) motion; and (2) the status of discovery. Should Thayer wish to refile his Rule 12(c) motion, the Court will set a new briefing schedule. Counsel is reminded that sub mission of extraneous documents must comply with Local Civil Rule 7.1(a)(3) of the Local Rules of the U.S. District Courts for the Southern and Eastern Districts of New York. The Clerk of the Court is respectfully directed to terminate the motion sequence pending at Doc. 108 and to mail a copy of this Order to Plaintiff. SO ORDERED. (Signed by Judge Philip M. Halpern on 3/11/2021) (ks) Transmission to Docket Assistant Clerk for processing.
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Filing
103
OPINION AND ORDER: For the foregoing reasons, Defendants' Motion To Dismiss is granted. Plaintiffs First Amendment claim against Gage is dismissed with prejudice on qualified immunity grounds, and therefore, any amendment would be futile. See Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101(2d Cir. 2002) ("[T]he district court has the discretion to deny leave [to amend] ifthere is a good reason for it, such as futility.... " (citingFoman v. Davis, 371 U.S. 178, 182 (1962)). The Eighth Amendment claims against Furco and the Due Process claim against Thayer remain. The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt. No. 96), terminate Defendant Gage from the docket, and mail a copy of thi s Opinion to Plaintiff. SO ORDERED. Dana Gage (Medical Director) terminated. (Signed by Judge Kenneth M. Karas on 11/21/2019) (jca) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.
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Filing
95
OPINION AND ORDER: For the foregoing reasons, Defendants' Motion To Dismiss is granted in part and denied in part. The Eighth Amendment claims against Gage, Adeknami, and Bigaud are dismissed. Because this is the second adjudication of Plaintiff 's claims on the merits and further amendment would be futile, the dismissal is with prejudice. Melvin v. County of Westchester, No. 14-CV-2995, 2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar. 29, 2016) (dismissing claims with prejudice because the plaintiff "has already had two bites at the apple, and they have proven fruitless" (citation, alterations, and quotation marks omitted)); Al-Qadaffi v. Servs. for the Underserved (SUS), No. 13-CV-8193, 2015 WL 585801, at *8 (S.D.N.Y. Jan. 3 0, 2015) (denying leave to amend where the plaintiff "has already had one chance to amend his [c]omplaint, and there is still no indication that a valid claim might be stated if given a second chance"), affd, 632 F. Appx 31 (2d Cir. 2016). The Eighth Amendment claims against Furco, the First Amendment claim against Gage, and the Due Process claim against Thayer remain. Defendants may renew their Motion To Dismiss the First Amendment claim on grounds of qualified immunity within 30 days of this Opinion. The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt. No. 90), terminate Defendants Bigaud and Adeknami from the docket, and to mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/29/2019) (jca) Transmission to Docket Assistant Clerk for processing.
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Filing
82
OPINION AND ORDER re: 63 MOTION to Dismiss pursuant 12(c) filed by Adeknami Albert, Dana Gage, B. Furco, Lieutenant Thayer, Bigaud. For the foregoing reasons, Defendants' Motion To Dismiss is granted in part and denied in par t. The claims against Adeknami, Gage, and Bigaud, and all Eighth Amendment claims against Furco except for the claim relating to the first evaluation are dismissed. The due process claim against Thayer is also not dismissed. Because this is the firs t adjudication of Plaintiff's claims on the merits, the dismissal is without prejudice. See Terry v. Inc. Vill. Of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016) (explaining that "district judges should, as a general matter, liberally permit p ro se litigants to amend their pleadings" unless "amendment would be futile"). Should Plaintiff choose to file a second amended complaint, he must do so within 30 days of this Opinion, addressing the deficiencies identified herein. The new amended complaint will replace, not supplement, the complaint currently before the Court. It therefore must contain all of the claims and factual allegations Plaintiff wishes the Court to consider. The Court will not consider factual allegations raised in supplemental declarations, affidavits, or letters. If Plaintiff fails to abide by the 30-day deadline, the dismissed claims could be dismissed with prejudice, and this case will proceed only with the due process claim against Thayer and t he Eighth Amendment deliberate indifference claim for the first incident involving Furco. The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt. No. 63), and to mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 6/4/2018) (mml)
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