Garrett v. Norwood et al

Filing 30

ORDER: The Court dismisses this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) and directs the Clerk of Court to close the case. The Court further orders plaintiff's counsel Robert H. Parker to show cause, within 10 days, why he should not be sanctioned for his failure to appear at oral argument. So Ordered by Chief Judge Carol Bagley Amon on May 8, 2015. (Arnold, Brandon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHAEL CURTIS GARRETT,
Plaintiff,

NOT FOR PUBLICATION

ORDER
- against-

14-CV-2065 (CBA) (LB)

JOHN L. NORWOOD, FRANK STRADA,
KIMBERLY ASK-CARLSON, ERIC BRADLEY,
DOUG HESS, RICHARD WOLFE, DARNEL
RICHARDSON, JERMAINE WILKINS,
NICOLE WALLER, MARCIAL MUNDO,
KRISTY COX and DANIEL GARCIA,
Defendants.

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AMON, Chief United States District Judge.

Plaintiff initiated this action, proceeding pro se, on April 1, 2014 alleging various claims
related to his pretrial detention at the Metropolitan Detention Center. (DE# 1.) Subsequently,
plaintiff obtained counsel, Robert H. Parker, and Mr. Parker filed a notice of appearance on July
31,2014. (DE#6.)
On January 7, 2015, defendants requested leave to move for dismissal on the basis that
plaintiff had failed to exhaust his administrative remedies as required by the Prison Litigation
Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). At the pre-motion conference, plaintiffs counsel
conceded that the Complaint, as currently drafted, was subject to dismissal for failure to exhaust,
but argued that the exhaustion requirement should be waived because prison officials frustrated
plaintiffs ability to seek relief through administrative channels. Based on that argument, the
Court granted leave for plaintiff's counsel to file an amended complaint by February 24, 2015.
(Minute Entry dated 2/3/2015.) At that conference, the Court also set a briefing schedule for
defendants' motion to dismiss the action and scheduled oral argument for May 8, 2015. @)

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Plaintiff's counsel never filed an amended complaint nor did he request an extension of
time to do so. In accordance with the schedule set by the Court, defendants served their motion
to dismiss on March 17, 2015. (DE# 25.) Plaintiffs counsel did not oppose that motion nor did
he request an extension of time to do so. (See DE# 26, 29.) On April 28, 2015, the Court
directed defendants' counsel to file their motion unopposed. (Order dated 4/28/2015.)
Plaintiffs counsel did not respond to that Order.
On May 8, 2015-the day of oral argument-the Court received a letter from plaintiff's
counsel seeking to stay the action or voluntarily dismiss it pending the resolution of the criminal
case against plaintiff. (DE# 29.) That letter acknowledged that "[t]his matter is currently
scheduled for oral arguments concerning defendant's [sic] un-opposed [sic] motion for summary
judgment [sic]." (@ And although counsel sought to stay or dismiss the action, he notably did
not request an adjournment of oral argument. (@ Yet, plaintiffs counsel did not appear at oral
argument. After taking an appearance from defendants' counsel, the Court confirmed, on the
record, that defendants have no objection to the voluntary dismissal of this action.
Accordingly, the Court dismisses this action without prejudice pursuant to Federal Rule
of Civil Procedure 41(a)(2) and directs the Clerk of Court to close the case. The Court further
orders plaintiffs counsel Robert H. Parker to show cause, within 10 days, why he should not be
sanctioned for his failure to appear at oral argument.
SO ORDERED.

~ , 2015
Dated: May
Brooklyn, New York

./"")

Isl Carol Bagley Amon

Carol B;gley. &:.oi/ f
__ ,,,,,, \
Chief United States District Judge

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