Tompkins v. Artus et al
Filing
69
DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 67 ) is APPROVED and ADOPTED in part in accordance with this Decision and Order. ORDERED, that Plaintiffs Motion for summary judgment (Dkt. No. 58 ) is DENIED. ORDERED, that Defendants Cross-Motion for summary judgment (Dkt. No. 61 ) is GRANTED in part and DENIED in part in accordance with this Decision and Order. ORDERED, that all claims against Defendants Raymond Furnia and James Rabideau are DISMISSED with prejudice. ORDERED, that all claims against Defendants in their official capacities are DISMISSED with prejudice. Signed by Senior Judge Lawrence E. Kahn on 7/30/12. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
AARON TOMPKINS,
Plaintiff,
-against-
9:10-CV-1200 (LEK/RFT)
C.O. D. BEANE, et al.
Defendants.
DECISION and ORDER
I.
INTRODUCTION
This matter comes before the Court following a Report-Recommendation filed on June 12,
2012 by the Honorable Randolph F. Treece, United States Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and L.R. 72.3(d) of the Northern District of New York. Dkt. No. 67 (“Report-Rec.”).
After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned,
including the Objections by pro se Plaintiff Aaron Tompkins (“Plaintiff”), which were filed on June
26, 2012. Dkt. No. 68 (“Objections”).
II.
BACKGROUND
On October 7, 2010, Plaintiff commenced this action pro se and in forma pauperis, seeking
relief under 42 U.S.C. § 1983. Dkt. No. 1 (“Complaint”). On November 3, 2010, Plaintiff filed his
Amended Complaint, stating causes of action under the Eighth Amendment against a number of
correctional officers at Clinton Correctional Facility (“Defendants”). Dkt. No. 6 (“Amended
Complaint”). Plaintiff specifically alleged that on or about May 3, 2009 he was involved in an
altercation with Defendants, who beat and injured him. Id. at 5. The Court assumes the parties’
familiarity with the facts underlying Plaintiff’s claim and recounts the facts here only to the extent
necessary to decide the Motions presently before the Court. For a more complete background,
reference is made to Plaintiff’s Statement of Undisputed Facts, submitted in accordance with
Northern District of New York Local Rule 7.1, and to Defendants’ Statement and Response thereto.
Dkt. Nos. 58-2 (“Pl.’s Statement of Undisputed Facts”) [hereinafter “Pl.’s 7.1 Statement”], 61-3
(“Defs.’ Statement Pursuant to Rule 7.1(a)(3)”) [hereinafter “Defs.’ 7.1 Statement”].
On January 5, 2012, Plaintiff filed a Motion for summary judgment. Dkt. No. 58
(“Motion”). On February 3, 2012, Defendants responded to Plaintiff’s Motion and filed a CrossMotion for summary judgment. Dkt. No. 61 (“Cross-Motion”). Plaintiff subsequently filed a
Response to the Cross-Motion. Dkt. No. 66. Presently before the Court are Plaintiff’s Motion and
Defendants’ Cross-Motion.
III.
STANDARD OF REVIEW
“A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court is to “make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b). Where, however, an objecting
“party makes only conclusory or general objections, or simply reiterates his original arguments, the
Court reviews the report and recommendation only for clear error.” Farid v. Bouey, 554 F. Supp. 2d
301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y.
2007)) (citations and quotations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL
599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). The Court has considered all Objections, has reviewed
the record, and has determined that the Report-Recommendation should be approved and adopted in
part for the reasons stated herein. Because the Court does not adopt the recommendation to grant
2
Defendants’ Motion for summary judgment on exhaustion grounds, however, the Court must also
review the other issues raised in the Motion and Cross-Motion de novo.1
IV.
DISCUSSION
A. Objections
In his Objections, Plaintiff argues: (1) that Judge Treece erred in asserting that Plaintiff did
not address Defendant’s claim that Plaintiff placed an unknown object in his mouth after striking
Officer Kilburn in the face; (2) that Judge Treece erred in finding that Plaintiff failed to exhaust – or
to otherwise show an exception to the requirement to exhaust – his administrative remedies with
respect to the assault allegation; and (3) that Judge Treece erred in recommending that Plaintiff’s
Motion for summary judgment be denied and that Defendant’s Motion for summary judgment be
granted and the case be dismissed. Obj. at 2.
1. Plaintiff’s Denial of Concealing Unknown Object
As to Plaintiff’s first objection, Plaintiff focuses on Footnote 2 in the Background section of
the Report-Recommendation, asserting that – counter to Judge Treece’s characterization – Plaintiff
did address the allegation that he “swallow[ed] [a] foreign object” “after the incident.” Obj. at 1.
Plaintiff is correct that in his rule 7.1 Statement of Facts he addressed this allegation when he
“den[ied] placing anything in [his] mouth.” Response at 16.2 However, the identification of a
minor inaccuracy in the Magistrate Judge’s account of the case is not necessarily sufficient to lead
1
Because the Report-Recommendation finds that Plaintiff has failed to exhaust his
administrative remedies and recommends that his claims be dismissed with prejudice on that basis,
it provides no recommendation on the merits of the other arguments raised by parties in their
Motions.
2
In referring to specific sections of the Response, the Court uses the numbers entered
electronically by the Clerk’s office as opposed to the handwritten numbers.
3
the Court to reject the Report-Recommendation. Courts have the ability “to correct a clerical
mistake or mistake arising whenever one is found in a judgment, order, or other part of the record.”
FED . R. CIV . P. 60(a). “The court at every stage of the of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial rights of the parties.” FED . R. CIV . P.
61; McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984). Here, the Court
recognizes that Plaintiff did in fact address the allegation, but this error is one that neither factored
into Judge Treece’s recommendation nor is relevant to Plaintiffs’ substantial rights. Reviewing the
instant Motions de novo, the Court does not find that Plaintiff’s denial in his 7.1 Statement of Facts
affects the Court’s analysis. Therefore, while Plaintiff’s objection is noted, the error in the ReportRecommendation has no bearing on the disposition of the Motions before the Court.
2. Exhaustion
Plaintiff’s second stated objection is to Judge Treece’s “finding that [Plainitiff] did not assert
any caveat that would exclude him from proper exhaustion.” Obj. at 1. Under the Prison Litigation
Reform Act of 1996 (“PLRA”), “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C.§ 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all
inmate suits about prison life, whether they involve general circumstances or particular episodes,
and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002) (citations omitted). Satisfying the exhaustion requirement “entails both ‘complet[ing] the
administrative review process in accordance with the applicable procedural rules’ and providing the
‘level of detail necessary in a grievance to comply with the grievance procedures.’” Amador v.
4
Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006) and
Jones v. Bock, 549 U.S. 199, 218 (2007)). However, a court may excuse a failure to exhaust if: (1)
administrative remedies were not available to the prisoner; Abney v. McGinnis, 380 F.3d 663 (2d
Cir. 2004); (2) a defendant waives the defense by failing to raise or preserve it or acted in such a
manner that they are estopped from raising it; Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004);
Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2004); or (3) if special circumstances exist to justify the
prisoner’s failure to comply with the exhaustion requirement. Giano v. Goord, 380 F.3d 670 (2d
Cir. 2004). In this case, there is no question but that administrative remedies were available and no
suggestion of waiver or estoppel based on Defendants’s conduct. Further, Judge Treece stated in his
Report-Recommendation that Plaintiff had failed to assert any caveat and had therefore not argued
that special circumstances applied. Report-Rec. at 9.
As in the case of his first objection, however, Plaintiff contends that the ReportRecommendation mischaracterizes Plaintiff’s position and disregards his arguments. In arguing that
he actually had asserted an exception to the exhaustion requirements, Plaintiff makes reference to
his Response in Opposition to Defendant’s Cross Motion for Summary Judgment. Resp. at 16.
Specifically, Plaintiff asserts that he did not receive the decision denying his initial grievance until
shortly before he was moved to Southport Correction Facility and did not have time to file an appeal
at Clinton before the move. Id. Plaintiff asserts that he filed an appeal at Southport, as instructed,
but he then was advised to file the appeal with Clinton directly. Id. at 17. Plaintiff did not file an
appeal with Clinton directly but claims that he “rel[ied] on reasonable interpretation” of a letter
from the Inmate Grievance Program, instructing him to file the appeal at “the facility.” Dkt. No. 582 at 48. While Plaintiff was actually required to file the appeal at Clinton, Plaintiff argues that he
5
believed that “the facility” referred to the facility – Southport – at which he was housed when he
received the letter. Resp. at 16-18. Plaintiff claims that he did ultimately file an appeal as
instructed, and when Plaintiff inquired regarding the status of his appeal in September, he was told
there was no record of appeal and that – because appeals are accepted no more than forty five days
after the superintendent’s response – no appeal would be accepted. Dkt. No. 58-2 at 53. In his
Response, Plaintiff argues that based on his account of his attempts to appeal, “special
circumstances exist and have been plausibly alleged to justify plaintiff’s failure to comply with the
applicable administrative procedural requirements.” Resp. at 17.
Like his first objection, then Plaintiff’s second objection correctly identifies a point on which
the Report-Recommendation neglected Plaintiff’s arguments. Unlike the minor factual
inconsistency noted in the previous objection, however, the Report-Recommendation’s statement
that Plaintiff had not claimed that caveat to the exhaustion requirement applied in his case is one
that “affect[s] the substantial rights of the parties” and therefore is one that requires the Court’s
attention. FED . R. CIV . P. 61; McDonough Power Equip., Inc., 464 U.S. at 553.
In both his Response and his Objections, Plaintiff has argued that “special circumstances
exist in this case, because: (1) the DOCCS grievance procedure was complicated; and (2) he made
an objectively reasonable, good faith effort to follow the grievance procedure and exhaust his
administrative remedies. See Obj.; Resp. at 17. Plaintiff cites the Second Circuit’s holdings in
Giano and Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004) for the proposition that “reliance on
a reasonable interpretation of prison grievance regulations may justify an inmate’s failure to follow
procedural rules to the letter.” Resp. at 17 (quoting Hemphill, 380 F.3d at 690). In their CrossMotion for summary judgment, on the other hand, Defendants rely on the Supreme court’s holding
6
in Woodford v. Ngo, 548 U.S. 81 (2006) and contend that the “PLRA requires ‘proper exhaustion’
of available remedies and that “‘[p]roper exhaustion’ requires a plaintiff to procedurally exhaust his
or her claims by ‘compl[ying] with the system’s critical procedural rules.’” Cross-Mot. at 6-7
(quoting Woodford, 548 U.S. at 94-95).
Other courts in this Circuit have identified the potential tension between Woodford and the
Giano/Hemphill line of cases. See, e.g., Murray v. Palmer, No. 9:03-CV-1010, 2010 WL 1235591,
at *3 n.7 (N.D.N.Y. Mar. 31, 2010) (“The Court recognizes that the Supreme Court’s decision in
Woodford v. Ngo may have changed the law regarding possible exceptions to the exhaustion
requirement”) (internal citation omitted); Winston v. Woodward, No. 05 Civ. 3385, 2008 WL
2263191, at *6 (S.D.N.Y. May 30, 2008); Chavis v. Goord, No. 00 Civ. 1418, 2007 WL 2903950, at
*9 n.8 (N.D.N.Y. Oct. 1, 2007) (Kahn, J.); Lawyer v. Gatto, No. 03 Civ. 7577, 2007 WL 549440, at
*4 n.4 (S.D.N.Y. Feb. 21, 2007). In the absence of a clear statement by the Second Circuit,
however, the Court joins other district courts in finding that the caveats to the exhaustion
requirement identified in Giano and Hemphill may in some cases still be available to prisoner
plaintiffs. See, e.g., Murray, 2010 WL 1235591, at *3 n.7 (“It is unclear whether Woodford has
overruled any decisions that recognize ‘exceptions’ to the exhaustion requirement. Out of special
solicitude to Plaintiff, the Court will assume that Woodford has not overruled the Second Circuit’s
Giano – Testman line of cases”); Winston v. Woodward, 2008 WL 2263191, at *6 (“this Court
adheres to clear Second Circuit authority, as well as the approach followed by other district courts in
this Circuit and applies the Hemphill three-part inquiry to Plaintiff’s exhaustion claims”); Sloane v.
Mazzuca, No. 04 Civ. 8266, 2006 WL 3096031, at *5 (S.D.N.Y. Oct. 31, 2006) (“The Second
Circuit has not addressed how [Hemphill’s] three-part approach . . . has been affected by Woodford”
7
and “[u]ntil such time as the Court of Appeals considers the impact of Woodford, if any, on its prior
rulings, this Court must follow the law of the Second Circuit. The Court will therefore apply the
current law of this circuit to the exhaustion claims.”).
In this case it appears that Plaintiff made a good faith effort to pursue administrative
remedies and exhaust such remedies prior to instigating federal litigation. Based on the uncontested
evidence, it appears that Plaintiff misdirected filings and misunderstood the correct facilities at
which to make certain inquiries and complaints. That being said, Plaintiff was responsive to notices
from personnel at the correctional facilities informing him of his errors. Additionally, Plaintiff
contends that he ultimately did file a timely appeal as instructed at Clinton. Resp. at 17-18. He has
further submitted to the Court letters that he sent in September of 2010 inquiring as to the status of
his appeal and responses from correctional facility personnel denying that such appeals were
received and informing him that he could no longer appeal. Dkt. No. 58-2 at 50-53. While
Defendants have submitted the Declaration of Tara Brousseau, the Inmate Grievance Supervisor at
Clinton Correctional Facility, stating that her investigation revealed that Plaintiff had not appealed
his grievances, Dkt. No. 61-9 ¶ 40, the Court concludes that Plaintiff has alleged facts that – if true –
demonstrate that he made reasonable efforts to exhaust his administrative remedy and file his
appeal.3 See Giano, 380 F.3d at 678 (“We need not, and hence should not, today attempt any broad
3
In his Report-Recommendation, Judge Treece states that “despite receiving these letters,
Plaintiff did not file an appeal of his grievance to Clinton Correctional Facility at any time, and as
such, we must find that Plaintiff failed to exhaust his administrative remedies as to his claims in this
action.” Report-Rec. at 9. While the Court notes the evidence that Defendant has offered in support
of this contention, Plaintiff has also offered evidence to suggest that he did in fact file (or at least
attempt to file) an appeal at Clinton. Given that this disagreement is a factual one, the Court
concludes that it would be improper to grant summary judgment and dismiss Plaintiff’s case on this
contested issue.
8
statement of what constitutes justification. It is enough for us to recognize that Giano’s complaint
alleges facts that, if true, suffice to justify his failure to file an ordinary grievance.”). Therefore, the
Court concludes that special circumstances of Plaintiff’s unsuccessful appeal should prevent the
Court from granting Defendants summary judgment on grounds of exhaustion.4
3. General Objection
Plaintiff’s third objection is simply a general objection to the Report-Recommendation and
its conclusions. Conclusory or general objections are reviewed only for clear error. Farid, 554 F.
Supp. 2d at 307. Because Plaintiff’s objection to Judge Treece’s Report-Recommendation as a
whole falls into this category, the Court has reviewed the other portions of the ReportRecommendation and has found no clear error.
B. Defendants’ Cross-Motion for Summary Judgment
Because the Court does not adopt Judge Treece’s recommendation that all of Plaintiff’s
claims be dismissed on grounds of failure to exhaust, the Court must address the other arguments in
Defendants’ Cross-Motion de novo. Defendants argue that: (1) the force used by Defendants was
reasonable; (2) Plaintiff’s claims against Defendants in their official capacity are barred by the
4
The Court does not hold that any claim by a prisoner plaintiff that he or she had filed an
appeal would be sufficient to defeat summary judgment on exhaustion grounds when a correctional
facility had never received such an appeal. Such a rule would seem to invite abuse and would
clearly contravene the purposes of the PLRA. Cf. Giano, 380 F.3d at 677 (“we believe that
prisoners may not circumvent the exhaustion requirement simply by waiting to bring a Section 1983
action until their administrative complaints are time-barred. Such a rule would not comport with the
purposes of the PLRA, which sought to ‘invigorate[ ] the exhaustion prescription’”) (quoting Porter
v. Nussle, 534 U.S. 516, 524 (2002)). In this case, however, Plaintiff has provided copies of letters
that he sent to correctional facilities inquiring about the status of his appeal. Dkt. No. 58-2 at 50-51.
Further, these letters predate the filing of this lawsuit and the introduction of the exhaustion issue,
leading the Court to conclude that they represent a good faith effort to pursue his grievance and
inquire as to his appeal, as opposed to an effort to conceal a failure to exhaust and to confuse the
record of his appeal.
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Eleventh Amendment; and (3) Plaintiff has failed to sustain his burden, and his Motion for summary
judgment should be denied. See generally Cross-Mot.
1. Reasonableness of Force
To state a claim for cruel and unusual punishment in violation of the Eighth Amendment, a
prisoner must “allege[ ] facts from which it could be inferred that prison officials subjected him to
excessive force, and did so maliciously and sadistically.” Sims v. Artuz, 230 F.3d 14, 22 (2d Cir.
2000). A plaintiff must show: (1) that the alleged use of force was “objectively sufficiently serious
or harmful enough,” United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999); and (2) that the force
was applied “maliciously and sadistically to cause harm” rather than “in a good-faith effort to
maintain or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).
A corrections worker who is present while an assault upon an inmate occurs but does not
participate in the assault may still bear responsibility for the inmate’s constitutional deprivation.
See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). To establish liability under a failure to
intervene theory, “a plaintiff must prove the use of excessive force by someone other than the
individual and that the defendant under consideration: 1) possessed actual knowledge of the use by
another corrections officer of excessive force; 2) had a realistic opportunity to intervene and prevent
the harm from occurring; and 3) nonetheless disregarded that risk by intentionally refusing or failing
to take reasonable measures to end the use of excessive force.” Lewis v. Mollette, 752 F. Supp. 2d
233, 244 (N.D.N.Y. 2010) (citations and internal quotation marks omitted).
Here, Defendants contend that “[t]he incident in our case is well documented and was fully
investigated” and that the “uncontested” evidence shows that Defendants used reasonable force.
Cross-Mot. at 5-6. As Plaintiff argues in his Response, however, the parties’ accounts of the
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confrontation differ substantially. Resp. at 13-15. While the Court notes that Plaintiff has conceded
that he bit Defendants and used force against them, Plaintiff also claims that Defendants instigated
the struggle and that he resorted to violence in an effort to defend himself. See generally id.;
Compl.; Mot. Given that there is dispute as to what precipitated the confrontation, the Court
concludes that genuine issues of material fact persist, making summary judgment on this issue
inappropriate.5
However, because Defendants Raymond Furnia (“Furnia”) and James Rabideau
(“Rabideau”) are not alleged to have been involved in the assault and because Plaintiff has failed to
respond to Defendants on this point and make an affirmative case for their liability under a failure to
intervene theory, the Court grants summary judgment as to Defendants Furnia and Rabideau.
Plaintiff has failed to raise a genuine issue of material fact or to provide a legal basis for Defendants
Furnia’s and Rabideau’s liability. Therefore, the Court grants summary judgment as to these two
Defendants.
2. Eleventh Amendment
“[N]either a State nor its officials acting in their official capacities are ‘persons’ under §
5
The Court notes that Defendants also raise an argument that any injury to Plaintiff was de
minimis or at least demonstrates that the force used was not greater than was required to subdue
Plaintiff. First, the Court cannot conclude that Plaintiff’s injuries – assuming his factual allegations
are true – are so insignificant as to require his claims to fail as a matter of law. See Alhaj v.
McCarthy, No. 11 Civ. 9049, 2012 WL 2929957, at *2 (S.D.N.Y. July 18, 2012) ( Warren v.
Purcell, No. 03 Civ. 8736, 2004 WL 1970642, at *7 (S.D.N.Y. Sept. 3, 2004) (“in the case of
excessive use of force by prison guards, the objective component does not require any particular
‘quantity of injury,’ for ‘[w]hen prison officials maliciously and sadistically use force to cause harm,
contemporary standards of decency are always violated.’”) (quoting Hudson, 503 U.S. at 9).
Second, given that factual issues persist as to what precipitated the use of force, the Court cannot
conclude as a matter of law that a certain amount of force would have been reasonable and that
certain injuries might or might not demonstrate that such a quantity of force was applied.
11
1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Further, a claim for
damages against state officials in their official capacities is considered to be a claim against the
State and is therefore barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159,
169 (1985); Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002). Plaintiff’s claims against
corrections officers in their official capacities are therefore barred by the Eleventh Amendment.
See, e.g., Page v. Vermont Dept. of Corrections, No. 5:11-cv-187, 2012 WL 2153438, at *2 (D.Vt.
June 13, 2012) (holding that the Eleventh Amendment bars suits against correctional workers in
their official capacities). Salvodon v. New York, No. 11 Civ. 2190, 2012 WL 1694613, at *3
(S.D.N.Y. May 14, 2012) (same). As a result, the Court grants Defendants’ Cross-Motion as to
these claims and dismisses all claims against DOCCS employees in their official capacities and
dismisses all such claims with prejudice.
3. Plaintiff’s Motion for Summary Judgment
As discussed in regard to Defendants’ Cross-Motion for summary judgment, the Court
concludes that there are genuine issues of material fact as to the degree of force used and the nature
of the alleged confrontation between Plaintiff and Defendant corrections officers. Therefore, the
Court cannot grant summary judgment and conclude as a matter of law that “defendants used
excessive force against the plaintiff in violation of [the] cruel and unusual punishments clause under
the [E]ighth [A]mendment in the [U.S.] [C]onstitution.” Mot. at 4. Because Plaintiff has failed to
meet his burden, the Court denies his Motion for summary judgment.
V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 67) is APPROVED and
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ADOPTED in part in accordance with this Decision and Order; and it is further
ORDERED, that Plaintiff’s Motion for summary judgment (Dkt. No. 58) is DENIED; and
it is further
ORDERED, that Defendants’ Cross-Motion for summary judgment (Dkt. No. 61) is
GRANTED in part and DENIED in part in accordance with this Decision and Order; and it is
further
ORDERED, that all claims against Defendants Raymond Furnia and James Rabideau are
DISMISSED with prejudice; and it is further
ORDERED, that all claims against Defendants in their official capacities are DISMISSED
with prejudice; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.
DATED:
July 30, 2012
Albany, New York
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