United States District Court, W.D. New York
DECISION & ORDER AND AMENDED SCHEDULING
W. PAYSON United States Magistrate Judge.
Derrick Hamilton (“Hamilton”) has sued several
Department of Corrections and Community Supervision
(“DOCCS”) employees, including Corrections
Officer Burgio, Corrections Officer Dusterhus, Captain
Robinson, and Sergeant Corcoran,  alleging violations of his
constitutional rights under 42 U.S.C. § 1983. (Docket ##
1; 21 at 44-45). The claims arise out of Hamilton's
incarceration at Attica Correctional Facility.
December 14, 2015, defendants filed a motion seeking an
extension of time to conduct discovery and file dispositive
motions. (Docket # 58). In their motion, defendants
acknowledge that the Court's scheduling order required
discovery to be completed by June 13, 2014, and dispositive
motions to be filed on or before January 16, 2015 (Docket ##
30; 48; 58-1 at ¶ 11), but argued that good cause
existed to extend these deadlines in this case (Docket # 58-1
at ¶¶ 7-12). According to defendants, on December
7, 2015, the district court issued a decision on a motion for
summary judgment filed by one of the defendants. (Docket #
56). In that decision, which was issued after the deadlines
for discovery and dispostive motions had passed, the district
court denied Captain Robinson's motion for summary
judgment on Hamilton's excessive force claim and
reinstated Hamilton's previously dismissed due process
claim. (Docket ## 56; 58-1 at ¶¶ 7, 9-11).
Defendants now seek to reopen discovery in order to permit
them to conduct additional discovery, including a deposition
of Hamilton, relating to the excessive force and due process
claims. (Docket # 58-1 at ¶ 14). They also request
permission to file a dispositive motion relating to these
claims after discovery is concluded. (Id. at ¶
December 15, 2015, the district court issued a notice
requiring Hamilton to respond by December 30, 2015. At
Hamilton's request, the district court extended this
deadline three times before referring the motion to this
Court for resolution on June 15, 2016. (Docket ## 60, 62, 64,
67, 68). On June 16, 2016, this Court issued a motion
scheduling order requiring Hamilton to respond to
defendants' motion by no later than July 8, 2016. (Docket
# 69). At Hamilton's request, the Court extended his
deadline to respond to July 29, 2016. (Docket # 72). Despite
requesting several extensions and being granted in excess of
seven months to respond to the motion, Hamilton has never
filed an opposition to defendants' request to reopen
discovery and to extend the dispositive motion deadline.
to oppose a pending motion may be fairly construed as a lack
of opposition to the requested relief or as a waiver of the
party's right to be heard in connection with the
motion.” Ellison v. Allstate Indem. Co., 2013
WL 6191576, *1 (W.D.N.Y. 2013) (citing TCPIP Holding Co.
v. Haar Commc'ns Inc., 2004 WL 1620950, *4 (S.D.N.Y.
2004) (defendant's failure to respond to motion was
sufficient basis to grant motion by default) and Loew v.
Kolb, 2003 WL 22077454, *1 (S.D.N.Y. 2003) (same)). In
this case, the motion scheduling order afforded Hamilton
sufficient time to respond to the pending motion. Hamilton
has not opposed the pending motion, and nothing in the docket
suggests that Hamilton's failure to respond was an
oversight. Rather, Hamilton's repeated requests for
extensions demonstrate that he was well aware of the
deadlines set by the Court. Accordingly, defendants'
motion to reopen discovery and to extend the dispositive
motion deadline (Docket # 58) is GRANTED. It is hereby
that the current scheduling order (Docket # 48) is amended as
1. Discovery is reopened limited to discovery relating to the
excessive force claim against Captain Robinson and the due
process claim relating to the denial of eyeglasses during the
disciplinary hearing. Such discovery shall conclude on August
1, 2017. All motions to compel discovery shall be made
returnable on or before August 1, 2017.
2. Any dispositive motions relating to those two claims shall
be filed no later than October 2, 2017. NOTE: If the
dispositive motion is filed against a party who is appearing
in this action pro se, the moving party must include
the advisement set forth in the notice attached to this
3. Responding papers are due by November 2, 2017. Reply
papers, if any, shall be filed by November 24, 2017. The
motion will be taken under advisement without oral argument.
4. If no dispositive motions are filed, defense counsel shall
notify the Court in writing on or before the dispositive
motion deadline date.
5. No extension of the above cutoff dates will be granted
except upon written joint motion, filed prior to the cutoff
date, showing good cause for the extension.
6. In accordance with Fed.R.Civ.P. 16(f), if a party or
party's attorney fails to obey this scheduling order or
fails to participate in good faith, this Court will enter
appropriate sanctions against that party or that party's
attorney, including dismissal of this action, if appropriate.