Barnes v. Fischer et al

Filing 182

STIPULATION AND ORDER OF DISCONTINUANCE PURSUANT TO RULE 41(A). Signed by Magistrate Judge Christian F. Hummel on 7/18/2014. (ptm) (Copy served on plaintiff by regular mail)

U.S. DISTHl(T rnurn -N.D. OF N.Y.

FILED
JUL 'L 1 2014
UNITED STA TES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

AT

O'CLOCK- - -

Lawrence K. 8ilerrnan, Clerk - Syracuse

JESSE J. BARNES,
Plaintiff,

STIPULATION AND ORDER
OF DISCONTINUANCE
PURSUANT TO RULE 41(A)

l l-CV-00583

-against-

NAM/DEP
[Mediation]

BRIAN FISCHER, et al.,

Defendants.

IT IS HEREBY STIPULATED AND AGREED by and between the undersigned, plaintiff
Jesse J. Barnes, appearingpro se, and Eric T. Schneiderman, Attorney General of the State of New
York, Brue J. Boivin, Assistant Attorney General, of counsel, appearing for defendants, the parties to
the above entitled-action, that, whereas no party hereto is an infant or incompetent person for whom
a committee has been appointed, and no person not a party has an interest in the subject matter of the
action, the above-entitled action be and the same hereby is settled on the particular circumstances of
this case, on the following terms and conditions, which it is agreed are of and shall have no legal
precedential value in any other case either between the parties to this case or any other parties:
1.

Pursuant to Rule 4l(a) of the Federal Rules of Civil Procedure, plaintiff hereby

discontinues this action with prejudice and without damages, costs, interest or attorneys fees, as
against defendants Allen, Richardson, and S. Garrison, and all "John or Jane Does," hereinafter and
collectively referred to as the "non-settling defendants" and meant to represent all defendants named

in this action at any time with the exception of defendant A. Gravlin, who is hereinafter referred to as
"the settling defendant."
2.

Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, plaintiff hereby

discontinues this action with prejudice and without damages, costs, interest or attorneys fees, under
the conditions described in Paragraph 5 of this agreement, as against defendant A. Gravlin as "the
settling defendant," and discharges and releases the settling defendant, and the State of New York,
including its agencies, subdivisions, employees, private contractors or assignees, of any and all
claims, demands, or causes of actions, known or unknown, now existing or hereafter arising, whether
presently asserted or not, which relate in any way to the subject matter of this action, and further
agrees to discontinue and/or not to commence or to pursue in any court, arbitration or administrative
proceeding, any litigation, appeal or claim against the defendant and others released hereby
pertaining to the underlying facts, circumstances or incidents that gave rise to the aforementioned
actions, or any results of the aforementioned facts, circumstances or incidents.
3.

The parties agree that no provision of this settlement shall be interpreted to be an

acknowledgment of the validity of any of the allegations or claims that have been made in the action.
4.

This settlement does not constitute a determination of, or admission by any party to

any underlying allegations, facts or merits of their respective positions. The settlement of this action
is limited to the circumstances in this case alone and shall not be given effect beyond the specific
provisions stipulated to. This settlement does not form and shall not be claimed as any precedent for
or an agreement by the parties to any generally applicable policy or procedure in the future.
5.

Following the execution of this Stipulation, and its being ordered by the Court:

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( 1)

the New York State Department of Corrections and Community Supervision

(DOCCS) agrees to forgive encumbrances on plaintiffs inmate account as follows: $395.00 for
Disciplinary Tickets, $20.27 for postage, $140.50 for Facility Restitution, $3,305.33 for postage
advances, $9.60 for commissary advances, $854.67 for Medical Copies advances, and $9,235.24 for
Legal Copies advances, for a total of$13,960.61; and
(2)

the settling defendant shall pay to plaintiff the sum of Four Thousand Nine

Hundred Twenty Five Dollars ($4,925.00), the full amount of which plaintiff agrees will be used to
pay current encumbrances on his inmate account as follows: $ 715.00 for New York State Court
Filing Fees,$ 3,010.10 for Federal Court Filing Fees,$ 650.00 for Mandatory Surcharges,$ 100.00
for DNA Fees, and$ 450.00 for Court Fines in full settlement of any and all claims, for a total of
$4,925.00. It is agreed that this sum and the sum referred to in paragraph (1) above includes all sums
to which plaintiff is entitled, including but not limited to damages, costs, and attorney's fees.
Plaintiffs check will be mailed to Upstate Correctional Facility for deposit in his inmate account, or,
in the event plaintiff is transferred prior to the issuance of the check, to the correctional facility in
which he is incarcerated at the time the check is mailed; and
(3)

plaintiff agrees to discontinue the lawsuits Barnes v. Prack, et al, 1 l-cv-0857

and Barnes v. Fischer, et al, 11-CV-1262, U.S. District Court NDNY, with prejudice, and execute a
separate document discontinuing such lawsuit which can be filed once executed by the plaintiff and
"so ordered" by the Court, and that the provisions of paragraph 2 above shall be applicable such
discontinuance; and

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(4)

plaintiff agrees not to commence any lawsuit in any court, state or federal,

related to any cause of action against any DOCCS employee, DOCCS, or the State of New York,
which plaintiff believes has accrued prior to the execution of this Stipulation.
6.

Payment by the settling defendant of the amount specified in paragraph 5 is

conditioned on the approval of all appropriate state officials in accordance with the provisions for
indemnification under section 17 of the New York Public Officers Law.
7.

Payment of the amount referenced in paragraph 5 will be made within one hundred

and twenty ( 120) days after the approval of this Stipulation by the Court and receipt by counsel of a
copy of the so-ordered stipulation, unless the provisions of Chapter 62 of the Laws of2001 apply to
the plaintiff and the payment hereunder constitutes "funds of a convicted person" under the Son of
Sam Law, in which event, the one hundred and twenty (120) day payment period shall be extended
by an additional thirty (30) days to allow for compliance with that law.
8.

In the event that the terms of paragraph 6 are satisfied, but payment is not made

within the periods set forth in paragraph 7, interest shall begin to accrue on the outstanding principal
balance at the statutory rate on the 121 st day after court approval or the 151 st day after court
approval if the provisions of Chapter 62 of the Laws of 2001 apply to plaintiff.
9.

This stipulation shall be null and void if the approvals referred to in paragraph 6 are

not obtained, and these actions shall then be placed back on the active docket without prejudice.
10.

Plaintiff represents and warrants that he is not a Medicare recipient, that he has never

been on Medicare or Social Security Disability, that no conditional payments have been made by
Medicare, and that he does not expect to be a Medicare recipient within the next 30 months.

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11.

The foregoing constitutes the entire agreement of the parties.

Dated: Plattsburgh, New York
July 18, 2014

Dated: Plattsburgh, New York
July 18, 2014
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants
w York 12224-0341
The Cap~, lbany
By·/--+-+-..,____ _

BlUCEJ.
Assistant Attorney General, of Counsel
Bar Roll No. 507894
Telephone: [phone]
Email: [e-mail]
Dated:

Plattsburgh, New York
July 18, 2014

SO ORDERED:'

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o~~ 4/J~
HON. CHRISTIAN F. HUMMEL
UNITED STATES MAGISTRATE JUDGE

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