Mitchell v. Chappius et al
| Dontie S. Mitchell |
| Paul Chappius, Jr., J. Hughes, Pareso, Arnot, Flint, Simpson, Stewart Eckert, Kevin J. Brown, B.J. Gabel, T. Franclemont, . Meyers, Sowa, Herzick, Labedz, Wilkin, Szableski, B. Richardson and Robert |
| 6:2017cv06673 |
| September 28, 2017 |
| US District Court for the Western District of New York |
| Rochester Office |
| XX US, Outside State |
| Michael A. Telesca |
| Civil Rights |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
40
DECISION AND ORDER granting 34 Motion to Appoint Counsel. The Court will appoint an attorney as plaintiff's pro bono counsel in this case. Once the Court identifies an attorney who can take this case, the Court will issue a separate order identifying the attorney. The Court will schedule a case management conference to amend the scheduling order once counsel is appointed. Signed by Hon. Mark W. Pedersen on 12/13/2019. (JB)-CLERK TO FOLLOW UP-
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Filing
20
ORDER denying 18 Motion to Stay or Transfer the Case. Signed by Hon. Michael A. Telesca on 12/20/18. A copy of this Order was sent to the plaintiff by first-class U.S. Mail on today's date. (AFB)
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Filing
17
ORDER finding as moot 16 Motion to Stay and that Plaintiffs request to proceed in forma pauperis (Docket No. 2) is granted. It is further ORDERED that Plaintiffs motion to stay (Docket No. 16) is denied as moot. It is further ORDERED that the foll owing claims are sufficient to survive initial review and proceed to service:the excessive force claim against Sgt. Robert. See Section VI.B, supra. the failure-to-protect claims against CO Pareso, CO Arnot, CO Flint, and CO Simpson. See Section VI.C , supra.the First Amendment retaliation claims against defendants CO Pareso, CO Arnot, CO Flint, CO Simpson, Sgt. Robert, Supt. Eckert, Dep. Supt. Gabel, Dep. Supt. Hughes, Lt. Labedz, Lt. Sowa, Lt. Herzick, SORC Richardson, SORC Wilkin, SORC Szables ki, and Asst. Dep. Supt. Franclemont. See Section VI.E, supra.the Eighth Amendment conditions of confinement and failure to protect claims against Supt. Eckert and Supt. Chappius. See Section VI.G, supra. the conspiracy claims against Dep. Supt. Kev in Brown, Dep. Supt. Gabel, Capt. Meyers, SORC Wilkins, SORC Richardson, SORC Szableski, Asst. Dep. Supt. Franclemont and Lt. Labedz. See Section VI.H, supra. It is further ORDERED that the following claims are dismissed without prejudice with leave to replead:the Eighth Amendment conditions of confinement claims. See Section VI.D, supra. the Fourteenth Amendment Due Process claims against Dep. Supt. Huges, SORC Szableski, and Asst. Dep. Supt. Franclemont. See Section VI.F, supra. It is further ORDERED that the Fourteenth Amendment Due Process claim against Lt. Labedz is dismissed with prejudice without leave to replead. See Section VI.F, supra. It is further ORDERED that the official capacity claims for monetary damages against all Defend ants are dismissed with prejudice without leave to replead. See Section VI.A, supra. It is further ORDERED that as to the claims that are dismissed without prejudice with leave to replead, if Plaintiff wishes to pursue these claims, he must file an a mended complaint within 45 days of the entry of this Decision and Order in a manner that complies with Rules 8 and 10 of the Federal Rules of Civil Procedure. Plaintiff is advised that an amended complaint will completely replace the prior complaint in the action, and thus it renders [any prior complaint] of no legal effect. Intl Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Therefore, an amended complaint must include all of the allegations against each Defendant so it may stand al one as the sole complaint that the Defendants must answer. It is further ORDERED that the Clerk of Court is directed to send to Plaintiff, along with a copy of this decision and order, a copy of the original complaint, a blank Section 1983 complaint form, and the instructions for preparing an amended complaint. It is further ORDERED that, in the event Plaintiff fails to file an amended complaint in the manner directed above, the Clerk of Court shall cause the United States Marshals Service to se rve the summons and complaint on the Defendants named in the caption, without Plaintiffs payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in Plaintiffs favor. It is further ORDERED the Clerk of Court shall f orward a copy of this decision and order by email to Ted OBrien, Esq., Assistant Attorney General in Charge, Rochester Regional Office of the New York State Attorney Generals Office, at <Ted.OBrien@ag.ny.gov>. It is further ORDERED that pursuant to 42 U.S.C. § 1997e(g)(2), Defendants are directed to respond to the complaint upon service.Signed by Hon. Michael A. Telesca on 8/27/18. (JMC)-CLERK TO FOLLOW UP-
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