The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Presently before the Court is defendants' motion for reconsideration (Dkt. No. 162) of United States District Judge Charles Bruno Kornmann's October 19, 2010 Order Adopting in Part Report and Recommendation. (Dkt. No. 127). Plaintiff opposes defendants' motion. (Dkt. No. 164). The trial of this action is scheduled to commence on September 20, 2011. (Dkt. No. 159).
II. PROCEDURAL BACKGROUND*fn2
On December 14, 2001, plaintiff appeared pro se and filed a Summons and Complaint alleging three causes of action against defendants Kevin Reedy ("Reedy") and Mark Van Garderen ("Van Garderen"). Plaintiff claimed that: (1) defendants used excessive force; (2) defendants denied plaintiff medical attention and; (3) defendants actions constituted the malicious use and wanton infliction of pain. On July 30, 2002, plaintiff, through counsel, filed an Amended Complaint asserting a fourth and fifth cause of action against two additional defendants: Gerald Jennings ("Jennings") and Kevin Tuffey ("Tuffey").
On October 29, 2003, defendants filed a motion for summary judgment seeking dismissal of plaintiff's fourth and fifth causes of action. On September 7, 2004, United States Magistrate Judge Gustave DiBianco issued a Report and Recommendation granting defendants' motion for summary judgment dismissing the amended complaint against Jennings, in its entirety and dismissing the claim of denial of medical care against Tuffey. (Dkt. No. 68). Magistrate Judge DiBianco construed plaintiff's denial of medical care and excessive force causes of action as Monell claims against Jennings and Tuffey:
"It appears that plaintiff is attempting to include these two defendants in their official capacities as agents of the City of Albany since plaintiff also claims that the City of Albany" has "conspired" to cover up the "illegal tactics" of the police officers by the "city's" alleged destruction of the booking area videotapes from the night of plaintiff's arrest. However, because it is unclear what plaintiff is attempting to claim, and he could be attempting to sue the supervisory defendants in their individual capacities as well, the court will analyze both types of claims".
In September 2004, both parties filed objections to the Report and Recommendation. (Dkt. Nos. 69, 73). In March 2005, Attorney Louis-Jack Pozner entered an appearance on behalf of plaintiff. In May 2005, counsel for the parties executed a Stipulation Discontinuing the Action. The Stipulation, which was "So Ordered" by United States District Judge Gary L. Sharpe on May 26, 2005, provided: . . . the same hereby is discontinued with prejudice, as to the Fourth and Fifth causes of action only, in plaintiff's Amended Complaint dated July 30, 2002 and sworn to on October 1, 2003."
On June 20, 2005, the Court held a telephone conference regarding the Report and Recommendation. After the conference, the Court issued a Minute Entry that included the following language: "Attorneys discuss stipulation filed that resolved the report-recommendation on the motion for summary judgment".
On April 24, 2006, Attorney Pozner moved to withdraw as plaintiff's
counsel.*fn3 The motion papers included a March 18,
2006 letter from plaintiff to Attorney Pozner in which plaintiff
indicated that Attorney Pozner executed the Stipulation of
Discontinuance without plaintiff's express authority.*fn4
On May 16, 2006, plaintiff filed an Affidavit in response to
counsel's motion to withdraw stating that counsel was aware that, "I
was against dismissing [Mayor Jennings and the Chief of Police]".
(Dkt. No. 85). On July 12, 2006, Attorney Pozner's motion was granted
and plaintiff elected to proceed pro se. (Dkt. No. 91).
On April 23, 2008, Judge DiBianco held a telephone conference. Plaintiff claimed that he did not consent to the Stipulation as signed by prior counsel. The docket contains a "Minute Entry for proceedings held before Magistrate Judge Gustave J. DiBianco". The entry reads, "[t]here are some issues over witnesses and a stipulation dismissing two defendants. Plaintiff claims that he did not 'consent' to the stipulation". Due to the fact that plaintiff was incarcerated, the case was removed from the active docket.
On September 7, 2010, the case was re-assigned to Judge Kornmann for all further proceedings and trial. Judge Kornmann conducted a de novo review of the file and asked plaintiff and defendants to clarify some "loose ends". On September 17, 2010, defendants provided the Court with a letter brief and presented the following argument:
It has always been the defendants' position that the plaintiff's Amended Complaint is that the Fourth and Fifth Causes of Action were the only causes of action against Mayor Jennings and Chief Tuffey. Specifically, neither Mayor Jennings nor Chief Tuffey are mentioned in the First, Second or Third Causes of Action as participating in, or being aware of, the alleged excessive force, deliberate indifference to plaintiff's medical needs, or cruel and unusual punishment. The Report and Recommendation does not state anything to the contrary, but rather bases its analysis of the alleged failures to protect the plaintiff within the Fourth and Fifth Causes of Action as being based upon the first three causes of action. Further, no cause of action for municipal liability was pled in the Amended Complaint. Moreover, an experienced attorney drafted the Amended Complaint. Accordingly, ...