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Amaker v. Kelley

March 15, 2007

ANTHONY D. AMAKER, PLAINTIFF,
v.
T. KELLEY, SGT., ET AL. DEFENDANTS.



The opinion of the court was delivered by: David E. Peebles, U.S. Magistrate Judge

DECISION and ORDER

This matter comes before the Court on Plaintiff's Motion for a Stay Proceedings in this action (Dkt. No. 227), and a Motion for an Extension of Time to respond to Defendants' Motion for Summary Judgment. Dkt. No. 232. Defendants have opposed both Motions. Dkt. Nos. 231 and 233.

A. Background

This action was filed on June 1, 2001. Plaintiff was granted leave to proceed with this action in forma pauperis on September 17, 2001. Docket No. 10. Plaintiff was granted leave to amend his Complaint on December 13, 2001. Docket No. 22.

Defendants filed their Answer on April 12, 2002. Docket No. 71. On May 13, 2002 Plaintiff was again granted leave to amend his complaint. Docket No. 75. Thereafter, Defendants filed an Answer on August 26, 2002. Docket No. 122.

Plaintiff's second amended Complaint sets forth causes of action against Defendants at Clinton Correctional Facility and Upstate Correctional Facility that allegedly occurred between June 1998 and January 2002. Plaintiff's claims include deliberate indifference to his medical needs, inhumane conditions of confinement, denial of access to law library facilities, retaliation for exercising his right to grieve and seek other forms of redress, racial discrimination, illegal search and seizure, violation of Plaintiff's privacy rights, and requiring inmates to pay for food and spices required for the Ramadan meal. See Dkt. No. 78.

Discovery in this action is now closed, and Defendants filed a Motion for Summary Judgment on February 13, 2007. Dkt. No. 229. Plaintiff's Response to the Motion was due on March 12, 2007. Plaintiff has not filed a response to the Motion but, rather, filed a Motion for an Extension of Time to answer the Motion for Summary Judgment.

B. Motion to Stay Proceedings

On January 31, 2007 Plaintiff filed a Motion to Stay Proceedings in this action. Dkt. No. 227. Plaintiff seeks a stay of all proceedings until: (1) Defendants "comply to the court prior order and disclose further information on the substitution of party;" (2) Defendants "disclose the identities of defendant Gideon;" and, (3) until the Second Circuit Court of Appeals decides Plaintiff's appeal from the denial of his Motion for injunctive relief.

Defendants oppose the Motion and argue that they have fully complied with the prior Orders of the Court, that Plaintiff has alleged no facts that support his requested relief, and has offered no justification for further delay of this case that has been pending for nearly six years. Dkt. No. 231.

With respect to the issue of identification of a party for substitution, the Court notes that on May 19, 2006 Defendants filed a suggestion of Death with respect to Defendant May. Dkt. No. 195. In the Order addressing the Suggestion of Death, Senior Judge Scullin found that:

In this case, Plaintiff's failure to name Defendant Mayo's legal representative, and to effect service of his Motion in accordance with Rule 4 of the Federal Rules of Civil Procedure requires that the Court deny his motion pursuant to Rule 25(a)(1). However, this denial is without prejudice to Plaintiff's right to file a renewed motion for substitution which identifies the person he seeks to substitute as Defendant in this action and on whom service of the Motion may be effected as required by Rule 25.

Furthermore, although it is ultimately Plaintiff's burden to ascertain the identity of Defendant Mayo's representative, there is no question that a pro se inmate such as Plaintiff has limited resources with which to conduct the necessary inquiry. Therefore, the Court directs the New York State Attorney General's Office to promptly disclose to the Plaintiff and to the Court any information it has, or hereafter acquires, regarding the identity of Mayo's representative. See Stephens v. American Risk Mgmt, Inc., 1995 WL 479438 (S.D.N.Y. Aug. 14,1995) at * 3 (former counsel for deceased defendant directed to provide plaintiff with information regarding decedent's legal representatives and/or widow's identity and address). In the event such information becomes available, Plaintiff may file a renewed motion for substitution and may seek the assistance of the U.S. Marshal in effecting service of that motion on Defendant Mayo's representative in accordance with Rule 4 of the Federal Rules of Civil Procedure.

Dkt. No. 218. Thereafter, on December 29, 2006, the New York State Attorney General filed a letter stating that "this office does not have any information regarding the identity of the legal representative or successor to be substituted for the deceased party, defendant Mayo. Should such ...


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