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Devers v. New York State Dep't of Corr Serv's

September 21, 2010

LAWRENCE HUDSON DEVERS, PLAINTIFF,
v.
NEW YORK STATE DEPT OF CORR SERV'S, SGT. ARNOLD J. JONATHAN, CO. SCOTT B. BAUER, CO. MATTHEW J. GALLIVAN, CO. KEVIN J. ZULEWSKI, AND CO. JOSEPH L. FAVATA, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

JURISDICTION

On May 21, 2007, the parties to this action consented, pursuant to 28 U.S.C. § 636(c)(1), to proceed before the undersigned. The matter is presently before the court pursuant to the undersigned's August 19, 2009 Order (Doc. No. 37) directing Plaintiff to show cause why the case should not be dismissed for failure to prosecute ("Show Cause Order").

BACKGROUND and FACTS*fn1

Plaintiff Lawrence Hudson Devers ("Plaintiff"), proceeding pro se, commenced this civil rights action on December 27, 2005, while incarcerated at Sourthport Correctional Facility ("Southport"), alleging that on January 8, 2003, Defendants, New York State Department of Correctional Services ("DOCS"), and various DOCS employees, used excessive force against Plaintiff and then denied Plaintiff medical treatment for serious injuries sustained as a result of such force, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Plaintiff also moved for permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), but did not move for appointment of counsel.

In a Decision and Order filed April 11, 2006, District Judge Richard J. Arcara granted Plaintiff's request to proceed in forma pauperis, dismissed the action against DOCS and against Defendant DOCS employees in their official capacities, leaving only the DOCS employees in their individual capacities as Defendants. The Clerk of the Court was directed to cause the United States Marshals to effect service of process of the summons and Complaint on Defendants. After several failed attempts, service by the U.S. Marshals was effected, between March 8, 2007 and April 27, 2007, on Defendants whose Answers were filed on May 3, 2007.

A scheduling conference set for June 27, 2007, was adjourned, at Plaintiff's request, to July 25, 2007. Plaintiff requested the adjournment because he had recently been transferred from Attica Correctional Facility ("Attica") to Livingston Correctional Facility ("Livingston"), and had yet to receive his legal papers, which were still at Attica with the legal assistant assigned to Plaintiff's case. The July 25, 2007 scheduling conference was adjourned to September 19, 2007, which Plaintiff, on September 13, 2007, moved to adjourn. By Text Order issued September 17, 2007 (Doc. No. 25), the undersigned denied Plaintiff's request to adjourn, and the scheduling conference was held on September 19, 2007, at which Plaintiff appeared by telephone. A Scheduling Order filed September 20, 2007 (Doc. No. 26), established, inter alia, deadlines of November 19, 2007 to amend the pleadings, March 31, 2008 for discovery, March 14, 2008 for motions to compel discovery, and June 16, 2008 for filing dispositive motions. The parties were also advised that no deadline would be extended except upon written joint motion filed prior to the relevant deadline and showing good cause for the extension, and that failure of any party to abide by the scheduling order or to participate in this action in good faith could result in sanctions, including dismissal of the action.

On November 20, 2007, Plaintiff moved (Doc. No. 27) for an extension of time to file an amended complaint, asserting Plaintiff continued to encounter difficulties obtaining his legal papers, which he received in October 2007. By order filed November 26, 2007 (Doc. No. 28), the undersigned granted Plaintiff's request, extending the deadline for filing amended pleadings to January 4, 2008.

By letter to the court filed February 11, 2008 (Doc. No. 30), Plaintiff advised he had been transferred back to Attica and was making preparations to again receive assistance from the same legal assistant who helped Plaintiff commence this action, as well as applying for appointment of counsel. As such, Plaintiff requested an extension of time to file an amended complaint. The motion was granted by the undersigned who, on February 11, 2008, filed the Second Amended Scheduling Order (Doc. No. 32), establishing as deadlines April 30, 2008 for filing amended pleadings, August 29, 2008 for discovery, August 14, 2008 for motions to compel, and November 21, 2008 for dispositive motions. The parties were again advised the no extensions would be granted absent a showing of good cause, and that failure to comply would result in sanctions, including dismissal if appropriate.

On April 29, 2008, Plaintiff moved for an extension of time to file papers (Doc. No. 33). The motion was granted by the undersigned who, on May 7, 2008, filed the Third Amended Scheduling Order (Doc. No. 35), establishing as deadlines July 30, 2008 for filing amended pleadings, November 28, 2008 for discovery, November 14, 2008 for motions to compel, and February 20, 2009 for dispositive motions. As with the court's earlier scheduling orders, the parties were advised that no extensions would be granted absent a showing of good cause, and that failure to comply would result in sanctions, including dismissal if appropriate. By text order issued February 5, 2009 (Doc. No. 36), at Defendants' request, the deadline for filing dispositive motions was extended to March 30, 2009.

To date, neither Plaintiff nor Defendants have filed in this action any amended pleading, motion to compel discovery, or dispositive motion, nor has any discovery taken place. By Order filed August 19, 2009 (Doc. No. 37), the undersigned, given that no dispositive motions had been filed, scheduled a conference for September 23, 2009, to set trial dates, which, by Text Order issued September 18, 2009 (Doc. No. 38), was adjourned at Plaintiff's request, based on Plaintiff's representation, made in a telephone call to chambers, that he had recently been arrested and was being detained at Rikers Island. Plaintiff was also ordered to notify the court of his new address and telephone number as soon as possible. September 18, 2009 Text Order.

On August 10, 2010, given the absence of any action on this case, the undersigned issued an Order to Show Cause (Doc. No. 39), directing Plaintiff to file with the Clerk of the Court, by September 9, 2010, an affidavit explaining in detail why this case should not be dismissed for failure to prosecute. By letter filed September 21, 2010 (Doc. No. 40) ("Plaintiff's Response"), Plaintiff explained that although he had been released on parole and was staying at a shelter where Plaintiff was in possession of his legal papers, in September 2009, Plaintiff was rearrested, at which time Plaintiff's property at the shelter, including his legal papers, was "secured" by a friend who placed the property into a large leather duffle bag. Plaintiff's Response at 1-2. Following Plaintiff's October 26, 2009 release on bail, Plaintiff did not have the opportunity to inventory his property before he was rearrested on January 7, 2010. Id. at 2.

Since his rearrest, Plaintiff maintains he has been unable to access his court papers. Plaintiff's Response at 2. Plaintiff also maintains his "medical condition," including a spinal cord injury, which Plaintiff attributes to Defendants' alleged use of excessive force, for which Plaintiff sues in this action, has worsened since his January 2010 rearrest. Id. Plaintiff further assets that his deteriorating medical condition has been accelerated by a current denial of medical treatment, pain medication, and physical therapy, and that Plaintiff now experiences sporadic paralysis. Id. at 2-3.

According to Plaintiff, he has been advised by physicians at Riker's Island that a continued deterioration in Plaintiff's medical condition eventually may lead to Plaintiff's loss of control of his bodily functions. Id. at 3. Plaintiff further maintains that his physical condition has caused him difficulty with ...


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