Burgess v. Superintendent of Otisville Correctional Facility et al
| Kelvit Burgess |
| Superintendent of Otisville Correctional Facility, P. Early, S. Roberts, A. Smith_Roberts, D. Glebocki, L. Hurd, Herbert E. Goulding, Superintendent of Green Correctional Facility, Hammon, Cole and Smith |
| 1:2015cv09256 |
| November 23, 2015 |
| US District Court for the Southern District of New York |
| White Plains Office |
| Greene |
| Vincent L. Briccetti |
| Civil Rights |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
79
OPINION AND ORDER re: 71 MOTION to Dismiss the First Amended Complaint. filed by Cole, Smith, M. Hammond, Brandon Smith. The Greene Defendants' motion to dismiss is GRANTED as to plaintiff's Eighth Amendment claim rega rding unsafe showers against Deputy Superintendent Hammond; plaintiff's Eighth Amendment claim regarding inadequate medical care against Nurse Cole; plaintiff's Eighth Amendment claims regarding the orthopedist referral and improper docu mentation of his medical conditions against Dr. Smith; and plaintiff's ADA discrimination claim regarding busing at Greene against all the Greene Defendants. The Greene Defendants' motion to dismiss is DENIED as to plaintiff's unsafe showers claim against Superintendent Smith, Nurse Cole, and Dr. Smith; and as to the inadequate medical care claim against Dr. Smith for refusing to provide plaintiff his knee and back braces. The Greene Defendants' motion to sever and tra nsfer is DENIED. By July 26, 2017, the Greene Defendants shall file an answer to the amended complaint. The Clerk is instructed to terminate the motion. (Doc. #71). The Clerk is further instructed to mail a copy of this order to plaintiff. Plaintiff and counsel for defendants shall attend the previously-scheduled case management conference on September 6, 2017, at 10:30 a.m., at the United States Courthouse, 300 Quarropas Street, Courtroom 620, White Plains, New York, at which time the Court will consider all case management matters and issue a revised Civil Case Discovery Plan and Scheduling Order. 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 theref ore 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., (Cole answer due 7/26/2017; M. Hammond answer due 7/26/2017; Smith answer due 7/26/2017; Brandon Smith answer due 7/26/2017.) (Signed by Judge Vincent L. Briccetti on 7/12/17) (yv)
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Filing
59
AMENDED OPINION AND ORDER: The motion to dismiss is DENIED as to plaintiff's ADA discrimination claim related to busing at Otisville. The motion to dismiss is GRANTED as to the Eighth Amendment conditions of confinement claim against the Gr eene Defendants; the ADA retaliation claim; and the ADA discrimination claim related to busing at Greene. Plaintiff is GRANTED leave to amend with respect to (i) the Eighth Amendment conditions of confinement claim regarding allegedly unsafe showe rs at Greene, and (ii) the ADA discrimination claims regarding busing, both of which are brought against the Greene Defendants. Plaintiff's amended complaint shall be filed by no later than December 30, 2016, in accordance with Part IV above. 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). The Clerk is instructed to terminate the motion. (Doc. #32). SO ORDERED. (Signed by Judge Vincent L. Briccetti on 11/21/2016) (lnl)
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