August 26, 2013
Lizamaris Delarosa, Plaintiff,
United States of America, AUSA Craig Nolan, ATF S/A Thomas M. Jusianiec, and T.F.O. Thomas McCoy, Defendants.
Lizamaris Delarosa, Plaintiff, pro se,
Hon. Richard S. Hartunian, United States Attorney, Charles E. Roberts, Esq., Assistant United States Attorney, Syracuse, New York, Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, District Judge.
The Government moves (Dkt. No. 31) for reconsideration of so much of the Memorandum-Decision and Order (Dkt. No. 29) as denied the Government's motion (Dkt. No. 28) to dismiss the amended complaint for failure to exhaust administrative remedies. Reconsideration is denied
The Government's reconsideration motion (Dkt. No. 31) also seeks, in the alternative, summary judgment dismissing the action for failure to exhaust administrative remedies. In its reply papers (Dkt. No. 36), the Government submits the declaration of Gregory D. Plott in support of summary judgment. Plainly, plaintiff has not had the opportunity to respond to this declaration. Accordingly, the Court denies the Government's summary judgment motion without prejudice. The Government may, if it so desires, make a summary judgment motion limited to the exhaustion question prior to the completion of discovery. Such a motion will not prejudice the Government's right to make a subsequent summary judgment motion on other grounds after discovery, in the event that the Court denies summary judgment on the ground of failure to exhaust.
The letter motion (Dkt. No. 33) is granted and the Court accepts the Government's amended Memorandum of Law.
It is therefore
ORDERED that the motion (Dkt. No. 33) is granted; and it is further
ORDERED that the motion (Dkt. No. 31) is denied with prejudice insofar as it seeks reconsideration, and denied without prejudice insofar as it seeks summary judgment; and it is further
ORDERED that the Government may make a summary judgment motion limited to the question of exhaustion of administrative remedies in accordance with this decision; and it is further
ORDERED that the Clerk of the Court is directed to serve copies of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.