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Mr. Damecha Harris 92-A-1389 v. Ms. C. Loverde

October 26, 2011

MR. DAMECHA HARRIS 92-A-1389, PLAINTIFF,
v.
MS. C. LOVERDE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION & ORDER

INTRODUCTION

Siragusa, J.

Pending before this Court are three motions filed by Plaintiff: a motion for summary judgment (Doc. No. 20) filed on March 15, 2010; a motion for a default judgment (Doc. No. 21) filed on May 13, 2010; and a second motion for summary judgment (Doc. No. 30) filed on July 1, 2010. In addition, Defendants have filed a cross-motion for summary judgment (Doc. No. 25), which is also pending. For the reasons stated below, the Court grants Defendants' cross-motion, and denies Plaintiff's two motions as moot.

BACKGROUND

The Court issued a briefing schedule with regard to Plaintiff's first motion for summary judgment (Doc. No. 20), and another with regard to his motion for default judgment (Doc. No. 21). (Doc. No. 22.) The Court did not issue a scheduling order with regard to Plaintiff's second motion for summary judgment (Doc. No. 30). On July 6, 2010, the Court issued a briefing schedule for Defendants' cross-motion for summary judgment, setting a response date of July 23, 2010, and reply date of August 20, 2010. (Doc. No. 29.) Defendants' cross-motion included the notice required by local rule and case law. (Doc. No. 26 "Irby Notice.")

Plaintiff's First Motion for Summary Judgment

In his first motion for summary judgment, Plaintiff contends that he is entitled to judgment because, "the documents provided by the Defendants' attorney under 'Initial Discovery,' on or about August 31, 2009, clearly contradict the Defendants' responses of May 15, 2009, and Clearly support [sic] all of the allegations raised in the complaint." (Doc. No. 20, Harris Aff. ¶ 2.) Plaintiff contends that Defendants used "the pretext of a cell search for the sole purpose of confiscating and reading plaintiff's legal mail," in violation of his constitutional rights. (Id. ¶ 3.)

Defendants oppose this motion, arguing that Plaintiff failed to follow the requirements of W.D.N.Y. Local Rule of Civil Procedure 56.1 and that Plaintiff's assertion, that Defendants' Federal Rule of Civil Procedure 26 discovery and their answer support his motion, "is incorrect." (Doc. No. 25, Bove Decl., ¶ 7.)

Plaintiff's Motion for Default Judgment

Plaintiff moved for entry of a default judgment (Doc. No. 21) on May 13, 2010. Unfortunately, the motion is difficult to read owing to Plaintiff's handwriting. In his motion, Plaintiff asks for entry of judgment "against all three of the defendants.." (Doc. No. 21 at 1.) The basis for his request is his contention that Defendants, fail[ed] to comply with the Court exigent imposed [sic] order of 05-07-10, to file a[n] answer to the Plaintiff['s] Notice of Motion and Affirmation in support for summary judgment, which none of the defendants addressed or objected to the relief [illegible] within the time prescribed by law imposed by this court order.. (Doc. No. 21 at 1.) Defendants responded to this motion by stating:

Plaintiff's Motion for Default must be denied as the Court has extended the deadline for filing dispositive Motions in this Action on February 16, 2010 to April 30, 2010 and on May 24, 2010 to June 30, 2001. Docket Numbers 15 and 23. In addition the deadline for defendant's Response to plaintiff's Motions has been set as June 30, 2010. Docket Number 24. Unless there is an explicit deadline in a scheduling Order, it is the practice of the Court to issue a scheduling Order setting the time frames for the opposing party's response. Defendants have complied with the Court's Orders. The scheduling order plaintiff is relying on was superseded by subsequent orders. (Doc. No. 25, Bove Decl., ¶ 8.)

Plaintiff's Second Motion for Summary Judgment

On July 1, 2010, Plaintiff filed a second motion for summary judgment. (Doc. No. 30.) In that application, however, he simply opposed Defendants' request for an extension of time to respond to Plaintiff's original summary judgment motion and asked that the Court deny Defendants the opportunity to file papers in opposition to Plaintiff's original summary judgment motion. (Doc. No. 30 at 2--3.) He also repeated his argument from the original summary judgment motion: that Defendants' initial discovery provides the basis for granting him judgment and that none of the defendants is entitled to qualified immunity. (Id. ΒΆΒΆ 5--6.) In particular, Plaintiff ...


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