Richardson v. Correctional Medical Care, Inc. et al

Filing 171

ORDER DISMISSING CASE: The Court hereby ORDERS that Plaintiff's request for a voluntary dismissal of this action GRANTED; and the Court further ORDERS that Plaintiff's 42 U.S.C. § 1983 claim of deliberate indifference against Defendan t Fricke is DISMISSED without prejudice; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance in the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 10/28/21. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BERNITA RICHARDSON, as Administratrix
of the Estate of Jimmy Richardson,
Plaintiff,
vs.

9:17-CV-420
(MAD/ATB)

RUSSELL FRICKE, Medical Director
at the Schenectady County Correctional Facility,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

LAW OFFICES OF ELMER
ROBERT KEACH, III, P.C.
One Pine West Plaza, Suite 109
Albany, New York 12205
Attorneys for Plaintiff

ELMER R. KEACH, III, ESQ.
MARIA K. DYSON, ESQ.

MAYNARD, O'CONNOR, SMITH
& CATALINOTTO, LLP
6 Tower Place
Albany, New York 12203
Attorneys for Defendant

KAREN A. BUTLER, ESQ.
EMILY PHILLIPS, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff Bernita Richardson, as administratrix of the estate of Jimmy Richardson
(hereinafter "Mr. Richardson" or the "decedent"), commenced this action on April 14, 2017,
alleging federal and state law claims against Defendants Correctional Medical Care, Inc.
("CMC"), CBH Medical, P.C. ("CBH"), Emre Umar, John Does 1-3 (collectively, the "CMC
Defendants"), Schenectady County, Sheriff Dominic D'Agostino, John Doe 4 (collectively, the
"County Defendants"), and Doctor Russell Fricke. See Dkt. No. 1. Plaintiff's claims arise out of

Mr. Richardson's medical care while he was incarcerated at the Schenectady County Correctional
Facility.
In a Memorandum-Decision and Order dated March 28, 2018, the Court granted the
County Defendants' motion to dismiss in its entirety, dismissed the deliberate indifference and
municipal liability claims against Defendants CMC, CBH, and Umar, and denied the motion as to
Plaintiff's deliberate indifference and state law claims as to Defendants Fricke and John Does 1-3.
See Dkt. No. 39. On January 14, 2021, the Court issued another Memorandum-Decision and
Order granting summary judgment on all of Plaintiff's remaining claims and terminating all other
Defendants from this action with the exception of Plaintiff's deliberate indifference claim against
Defendant Fricke, who remains the sole defendant in this action.
On January 21, 2021, Defendant Fricke filed a motion to reconsider asking the Court to
dismiss Plaintiff's claim for deliberate indifference against him. On February 18, 2021, Plaintiff
filed a cross-motion for entry of judgment for Plaintiff's state law claims, and the dismissal of
claims against Defendants CMC and CBH. Dkt. No. 133. At the parties request, the Court
deferred ruling on these motions and stayed this case while the parties engaged in settlement
discussions. See Dkt. No. 136. When the parties reported that settlement discussions had broken
down, the Court issued a Memorandum-Decision and Order denying the pending motions and
scheduled trial to commence on September 27, 2021. See Dkt. No. 138. At the parties request,
however, the Court set a new firm trial date of November 1, 2021. See Dkt. No. 142.
Now, two business days from the scheduled start of trial, Plaintiff has filed a stipulation
voluntarily dismissing the sole remaining cause of action. See Dkt. No. 170. Upon receiving
word from Plaintiff's counsel of his intention to voluntarily dismiss the sole remaining cause of
action, the Court ordered counsel to appear for a status conference on October 27, 2021, at 3:45
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p.m. At this conference, Plaintiff's counsel made clear that the decision to voluntarily dismiss the
remaining claim was made because he felt that he would not succeed on this claim at trial and he
wished to immediately appeal this Court's previous dismissals of the other claims and Defendants.
At this conference, the Court made clear its displeasure at Plaintiff's counsel's decision on the eve
of trial and that it was clear that Plaintiff's counsel had made this tactical decision as an end run
around the Court's denial of the motion for entry of judgment, i.e., an attempt to manipulate
appellate jurisdiction when none would otherwise exist.
In the stipulation of partial discontinuance, Plaintiff fails to indicate under what provision
of Rule 41 dismissal is sought. See Dkt. No. 170. Since the parties have presumed that no order
is required, it appears that the dismissal is sought pursuant to Rule 41(a)(1)(A)(ii). Rule
41(a)(1)(A)(ii) provides that "the plaintiff may dismiss an action without a court order by filing ...
a stipulation of dismissal signed by all parties who have appeared." However, the stipulation
provided by Plaintiff is not signed by every party that has appeared in this action — only by
Plaintiff and Defendant Fricke. The other appearing parties include Defendants Correctional
Medical Care, Inc., CBH Medical, P.C., Emre Umar, Schenectady County, and Sheriff Dominic
D'Agostino. Despite the self-executing nature of a Rule 41(a)(1)(A)(ii) stipulation, the Court may
exercise its inherent power to do all things that are reasonably necessary for the administration of
justice. See Guarnero-Ruiz v. 36-03 Food, LLC, No. 17-CV-3178, 2017 WL 7049543, *8
(E.D.N.Y. Dec. 11, 2017) (citing Thomsen v. Terrace Navigation Corporation, 490 F.2d 88, 89
(2d Cir. 1974)). As such, the Court construes the stipulation of partial discontinuance as a Rule
41(a)(2) request for voluntary dismissal, which is not self-executing and requires a court order.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, the Court grants Plaintiff's request for a voluntary dismissal, without prejudice.
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Although the Court is granting this request, the Court makes the following observations, which
were briefly raised during the October 27, 2021 status conference.
As mentioned above, this dismissal request appears to be a blatant attempt to "secure[] an
otherwise unavailable interlocutory appeal" through manipulation of Rule 41 and this Court.
Chappelle v. Beacon Communications Corp., 84 F.3d 652, 654 (2d Cir. 1996); see also Negron v.
Bank of Am. Corp., 768 Fed. Appx. 35, 36 (2d Cir. 2019). Indeed, counsel for Plaintiff explicitly
stated, on the record, that the purpose of this voluntary dismissal request was to create a final
judgment from which Plaintiff could appeal and obtain review of the previous orders of this
Court. See also Dkt. No. 170 ("The plaintiff is not discontinuing claims against [Defendant]
Fricke under New York state law, which will be the subject of an appeal to the ... Court of
Appeals"). Whether Plaintiff has actually created appellate jurisdiction through its voluntary
dismissal without prejudice of her sole remaining claim on the eve of trial is a matter for the
Second Circuit to resolve. See Rabbi Jacob Joseph Sch. v. Province of Mendoza, 425 F.3d 207,
210 (2d Cir. 2005); see also Rowland v. S. Health Partners, Inc., 4 F.4th 422, 425 (6th Cir. 2021)
("We lack jurisdiction over this appeal because the voluntary dismissal of Rowland's remaining
state-law claims did not create an appealable final order under 28 U.S.C. § 1291. Rowland's
decision to voluntarily dismiss her — presumably strongest — claims without prejudice for the
purpose of obtaining an immediate appeal, and with the intention of reinstating the dismissed
claims if the appeal was successful, is an impermissible circumvention of the finality requirement
and the procedures set forth in Rule 54(b). Fed. R. Civ. P. 54(b). This conclusion is compelled
by our own precedent and is consistent with the decisions of nearly every other circuit court to
address this issue").
Accordingly, the Court hereby
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ORDERS that Plaintiff's request for a voluntary dismissal of this action GRANTED; and
the Court further
ORDERS that Plaintiff's 42 U.S.C. § 1983 claim of deliberate indifference against
Defendant Fricke is DISMISSED without prejudice; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance in the Local Rules.
IT IS SO ORDERED.
Dated: October 28, 2021
Albany, New York

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