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Jefferson v. County of Suffolk

United States District Court, E.D. New York

March 7, 2017

KEVIN L. JEFFERSON, Plaintiff,
v.
COUNTY OF SUFFOLK, POLICE OFFICER ANDREW DUBRISKE, POLICE OFFICER MICHAEL UMBARILA, POLICE OFFICER DANIEL SALVATORE, POLICE OFFICER JOHN WILLIAMS, SERGEANT MIKE SMITH, VINCENT F. DEMARCO, Suffolk Sherriff, POLICE OFFICER RYAN KERLEY, and POLICE OFFICER FRED MIGNONE, Defendants.

          For Plaintiff: Kevin L. Jefferson, pro se

          For Defendants: Brian C. Mitchell, Esq.

          MEMORANDUM & ORDER

          Joanna Seybert, U.S.D.J.

         Presently pending before the Court is Magistrate Judge Anne Y. Shields' Report and Recommendation dated February 10, 2017 (the “R&R”) recommending that this Court: (1) deny without prejudice Defendants' motion to dismiss the consolidated cases on this docket for failure to prosecute, and (2) deny without prejudice the motions to dismiss pending under docket numbers 15-CV-2303, 15-CV-2304, and 15-CV-2305. (R&R, Docket Entry 23.)

         For the following reasons, the Court ADOPTS Judge Shields' R&R in its entirety.

         BACKGROUND

         The Court assumes familiarity with the factual and procedural background of this matter, which is set forth in detail in the R&R. Briefly, on February 4, 2015, Plaintiff commenced the lead case in this matter under Docket Number 15-CV-0544 (the “Lead Case”). Plaintiff asserted claims pursuant to 42 U.S.C. § 1983 with respect to the deprivation of his First and Fourteenth Amendment rights in connection with, inter alia, alleged interference with his right to panhandle (the “Lead Case”). (See Compl. at 1-2.)

         On January 15, 2016, the Court granted in part and denied in part the motion to dismiss filed in the Lead Case (the “January Order”). (Jan. Order, Docket Entry 18, at 1.) The Court held, in relevant part, that Plaintiff's claim against Officer Dubriske was dismissed without prejudice and with leave to replead within thirty (30) days of the date of the January Order. (Jan. Order at 26.) To date, Plaintiff has not repled his claim against Officer Dubriske.

         Additionally, the Court sua sponte consolidated the Lead Case with Plaintiff's other lawsuits filed against the County of Suffolk (the “County”), County police officers, and/or County sheriffs, (see Docket Numbers 15-CV-2303, 15-CV-2304, and 15-CV-2305 (collectively, the “Consolidated Cases”)), as these cases arose out of the same general set of facts. (Jan. Order at 25.) The Court further directed that all future filings be docketed in the Lead Case. (Jan. Order at 25.)

         Prior to the Court's determination of the motion to dismiss filed in the Lead Case, motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or 12(c) were filed in the Consolidated Cases (the “Rule 12 Motions to Dismiss”). (See No. 15-CV-2303, Docket Entry 9; No. 15-CV-2304, Docket Entry 9; and No. 15-CV-2305, Docket Entry 11.)

         On May 13, 2016, Defendants filed a motion requesting that all of Plaintiff's claims be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41, and that Plaintiff's claims in the Consolidated Cases be dismissed pursuant to Rule 12(b)(6). (Defs.' Mot., Docket Entry 20, at 3.) On November 8, 2016, the Court referred Defendants' motion to Judge Shields for a report and recommendation on whether the motion should be granted. (Ref. Order, Docket Entry 22.)

         On February 10, 2017, Judge Shields issued her R&R. (See generally R&R.) Judge Shields recommended that the Court deny without prejudice Defendants' motion to dismiss for lack of prosecution. (R&R at 7-10.) Judge Shields also recommended that the Rule 12 Motions to Dismiss be denied without prejudice to Defendants' submission of a proposed briefing schedule for renewed motions to dismiss the Consolidated Cases. (R&R at 6-7.) Judge Shields noted that any renewed motions should “consider, argue and incorporate if appropriate” this Court's determinations set forth in the January Order. (R&R at 11.)

         On February 18, 2017, Defendants filed a letter requesting that the Court adopt the following briefing schedule for their motion to dismiss the Consolidated Cases: Defendants' motion to dismiss to be filed and served by April 3, 2017; Plaintiff's response to be filed and served by May 1, 2017; and ...


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