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Crichlow v. Fischer

United States District Court, W.D. New York

February 10, 2017

KEVIN DAMION CRICHLOW, Plaintiff,
v.
BRIAN FISCHER et al., Defendants.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD UNITTED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff Kevin Damion Crichlow ("Plaintiff) filed this action pursuant to 42 U.S.C. § 1983 in the Southern District of New York on August 16, 2012. (Dkt. 2). Plaintiff filed an amended complaint seeking relief against 136 Defendants (together "Defendants") on June 17, 2013. (Dkt. 12). The action was transferred to this Court by Order of Judge Nelson S. Roman of the Southern District on April 28, 2015. (Dkt. 168). Presently before the Court are Plaintiffs (Dkt. 212; Dkt. 219) and Defendants' (Dkt. 193) motions to sever. The parties ask this Court to sever the action and relocate each claim in the district where that claim arose. (See Dkt. 193-1 at 2; Dkt. 212 at 1; Dkt. 219 at 4). For the reasons stated below, the motions are granted.

         I. Severance is Appropriate

         The Federal Rules of Civil Procedure allow a court to "sever any claim against any party." Fed.R.Civ.P. 21; see, e.g., Wyndham Assocs. v. Bintliff, 398 F.2d 614, 618 (2d Cir. 1968). In making a severance determination, courts look to:

(1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for the separate claims.

Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 580 (E.D.N.Y. 1999). Severance is within the discretion of the district court. See Spencer, White & Prentis Inc. of Conn. v. Pfizer Inc., 498 F.2d 358, 361-62 (2d Cir. 1974); see, e.g., Morris, 37 F.Supp.2d at 580.

         Here, each of the factors that the Court must consider favors severance. Plaintiffs claims do not all arise from the same transaction or occurrence, nor do they present common questions of fact or law. (See Dkt. 12). Of the 275 substantive numbered paragraphs in the amended complaint, "15 relate to claims arising in the Southern District, 57 relate to claims arising in the Western District, and 204 relate to claims arising in the Northern District." (Dkt. 193-1 at 1). Plaintiffs various claims arise from his incarceration at Downstate Correctional Facility ("Downstate") in the Southern District of New York, at Eastern Correctional Facility ("Eastern") and Auburn Correctional Facility ("Auburn") in the Northern District of New York, and at Wende Correctional Facility ("Wende") and Wyoming County Hospital in this District.

         Judicial economy will be facilitated by severing the actions. Hearing each claim in the district where the conduct allegedly occurred will facilitate travel for local witnesses with first-hand knowledge of the circumstances. Additionally, there is no prejudice to any party because the parties consent to severance. Therefore, severance is appropriate, and the motions to sever are granted.

         Although the amended complaint is not delineated by cause of action, the claims and corresponding Defendants are separated by paragraphs that relate to the various distinct venue locations noted below. Accordingly, based upon a review of those claims, and as set forth in Defendants' motion papers, Plaintiffs claims are severed as follows:

         Southern District of New York

         The claims against the following Defendants, primarily referenced in Plaintiffs claims in ¶¶ 8-23 of the amended complaint, arose in the Southern District of New York and are hereby severed and constitute the "Southern District Action":

• Doctor Ellen Youssef
• Superintendent of Downstate John Doe
• John Doe, Grievance Program Director at Downstate

         Northern District of New York

         The claims against the following Defendants, primarily referenced in Plaintiffs claims in ¶¶ 72-283 of the amended complaint, arose in the Northern District of New York and are hereby severed and constitute the "Northern District Action":

• Superintendent of Auburn John Doe • CO. Clarke • John Doe (see Dkt. 12 at 3, #74)

         • Doctor Gusman

         • Grievance Supervisor Terry Houk

         • R.N. Denise Falzon

         • Nurse II E. Aversano

         • Doctor Andola

         • John Does, Those who work the 7 to 3 Tour (see Id. at 3, #83)

         • Lieutenant Simmion, Hearing Officer dated 1/17/11 • Senior Counselor T. Briggs, Program Comm.

         • CO. Alison, 1/14/11 and 1/25/11 • B-3 A Officer S.D.U.

         • CO. Rosa, S.D. U., 1/26/11 and 1/25/11 • John Doe, B-3, 11-7, 1/27/11 • 4 John Does working 1/11/11 to 2/1/11, 91-95 • William, Senior Counselor, S.D. U.

         • Counselor Escobar

         • CO. Friedman

         • CO. Jamel, A.K.A. Jamil

         • Captain Russo, Security

         • Acting Super R. Wendland

         • CO. J. Brewer

         • CO. M. Conner

         • Sergeant Parkhurst

         • CO. S. Navitsky

         • Lieutenant Madison

         • D.M.D. M. Moore, Oral Surgery

         • Jennifer Wrest, RN, Np #296 • Doctor J. Levitt, M.D., 126 • C.O.Kyle • CO. Verone • Dental Assistant Kevin • Sergeant B. Leifeld • Nurse Lapenna • Sergeant Johnson • CO. Buster • Counselor D. Anderson • CO. Mack • Counselor Jordan • Warden Arms • Sunshine Environmental Service, Inc.

         • Asbestos Construction Group PNC.

         • Doctor Jeffrey Arliss, M.D. jA: Tc./Job I.D. #269432 • John Does, S.H. U. OM on or about 11/10/11 (see Id. at 3, #135)

         • Attorney General, Dept. of Law, The Capital, Albany, New York • CO. K. Wojcieohowski Western District of New York The claims against the following Defendants, primarily referenced in Plaintiffs claims in ¶¶ 24-71 of the amended complaint, arose in the Western District of New York and are hereby severed and constitute the "Western District Action":

• Brian Fischer, DOCS, in his or her individual capacity and official capacity
• Superintendent Robert A. Kirkpatrick
• Lieutenant Keenan, Tier II Hearing • Captain Kearney
• Szemplenski, Senior Counselor and Program Committee Chairperson
• K. Herrman
• Susan Post, Deputy Super of Health
• Skubis, Transitional Services Dept.
• Director Karen Bellamy, Grievance Program
• Little John Attea, A.K.A. ...

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