United States District Court, W.D. New York
May 10, 2005.
HASAN ALI ABDUR-RAQIYB, Plaintiff,
ERIE COUNTY MEDICAL CENTER (ECMC), PAMELA DIANE REED, M.D., WYOMING COUNTY COMMUNITY HOSPITAL, TWIN CITY AMBULANCE SERVICES, Defendants.
The opinion of the court was delivered by: MARIAN W. PAYSON, Magistrate Judge
DECISION & ORDER
By order dated April 12, 2005, the above-captioned matter has
been referred to the undersigned for the supervision of pre-trial
discovery and the hearing and disposition of all non-dispositive
motions, pursuant to 28 U.S.C. §§ 636(b)(A) and (B). (Docket #
Currently before the Court are plaintiff's pro se motions to
compel an answer to his Complaint (Docket # 34), for permission
to amend his Complaint (Docket # 35), and to compel answers to
discovery requests and preclude defendant Reed from requesting
representation by the New York State Attorney General's Office
(Docket # 36). Also before the Court is defendant Reed's motion
for the substitution of counsel. (Docket # 37). Each of the
pending motions shall be addressed in turn below.
Compel Answer To Complaint: Plaintiff initially filed the
Complaint in this matter on March 26, 2004. (Docket # 1). Service
of the Complaint was completed upon defendant Erie County Medical
Center on October 22, 2004. (Docket # 9). On March 2, 2005,
plaintiff moved to compel Erie County Medical Center's answer to
the Complaint. (Docket # 34). Prior to this Court's consideration
of the motion, an Answer was filed by Erie County Medical Center on April 13, 2005. (Docket # 40). Thus,
plaintiff's motion to compel such Answer is denied as moot.
Permission To Amend: In his second motion, plaintiff requests
an "order to amend the complaint upon obtaining the names of the
other defendants? who violated his rights." (Docket # 35).
Plaintiff has failed, however, to present the Court with a
proposed amended complaint and it appears from his motion that he
is unable at this time to identify the individuals he seeks to
add as parties to this action. Thus, to the extent plaintiff
seeks to amend his Complaint, such motion is denied as premature.
By separate Order, this Court has noticed a Rule 16 Scheduling
Conference in this matter, which will occur on June 15, 2005, at
11:00a.m. During that conference, the Court will, among other
things, identify the dates by which all discovery must be
completed and all motions to amend must be filed. Therefore, if
after further discovery plaintiff is able to identify specific
additional parties or claims that he believes should properly be
included within the Complaint, he may renew his motion to amend
at that time.
Compel Discovery Responses and Preclude Representation:
Plaintiff also moves to compel responses by defendant Pamela
Diane Reed, M.D. to his First Set of Interrogatories and Request
for Production of Documents. (Docket # 36). This motion, however,
is also premature. As noted above, a Rule 16 Scheduling
Conference will be conducted in this matter on June 15, 2005. The
Court will at that time discuss the procedures and deadlines for
discovery. Accordingly, plaintiff's motion to compel is denied at
this time as premature.
Within this motion, plaintiff also seeks to prohibit defendant
Reed from requesting representation by the New York State
Attorney General's Office. (Docket # 36). This Court does not
have authority to prohibit a defendant from requesting state
representation; accordingly, plaintiff's motion is denied. Cross Motions by Defendant Reed: In response to plaintiff's
motion to compel discovery responses and to preclude her request
for representation by the Attorney General's Office, defendant
Reed has cross-moved for an order denying such motions and
approving the substitution of counsel. (Docket # 37). To the
extent necessary, plaintiff's motion for the substitution of
counsel is granted.*fn1 Moreover, because, as discussed
above, this Court has denied plaintiff's motion to compel
discovery responses as premature, defendant's cross-motion on
this issue is moot.
For the foregoing reasons, plaintiff's motion to compel an
answer to his Complaint (Docket # 34), to amend his Complaint
(Docket # 35), and to compel answers to discovery demands and
to preclude the request for representation by the Attorney
General's Office (Docket # 36) are DENIED. Moreover,
Defendant Reed's motion to the substitution of counsel (Docket #
37) is GRANTED.
IT IS SO ORDERED.