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Candelaria v. Higley

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


February 24, 2009

JUAN CANDELARIA, 89-T-5069, PLAINTIFF,
v.
LAURENCE HIGLEY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Plaintiff filed his original complaint on April 9, 2004. Dkt. #1. Since that time, he has filed an amended complaint (Dkt. #4), and supplemental complaint (Dkt. #13), moved to withdraw the action (Dkt. #14), moved to reopen the action (Dkt. #16), and filed a second supplemental complaint. Dkt. #21.

Following an Order granting defendants' motion to dismiss several of the defendants and several causes of action (Dkt. #44), plaintiff advised the Court that he intended to file a third amended complaint, prompting the Court to stay defendants' deadline to answer. Dkt. #46.

By motion dated February 18, 2009, plaintiff complains that the transfer of his legal papers has been delayed following his recent transfer to Green Haven Correctional Facility and states, "if I cannot complete the underlying proposed third amended complaint within the next three month[s] due to lack of access to law library/legal supplies, I hereby ask that the defendants be directed to answer the second supplemental complaint in [the] Court's file." Dkt. #48.

The Court is concerned that although this was commenced in 2004 and involves incidents alleged to have occurred as far back as 2001, this case has remained at a standstill and no discovery has taken place. The Court notes that plaintiff first expressed his intent to file a third amended complaint on April 2, 2008.

As the motion to dismiss the second supplemental complaint has been resolved and the second supplemental complaint is, therefore, currently in a procedural posture to move forward, the Court declines to delay this action further and directs that defendants answer the second amended complaint no later than March 13, 2009.

SO ORDERED.

Buffalo, New York

20090224

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