Hutter v. Schriro et al

Filing 239

ORDER: The attached order granting Defendants' request for a 90 day stay of litigation until July 2, 2020, (dkt. no. 235), was issued on April 3, 2020, but apparently was not docketed. Accordingly, the order is re-issued today. Given the st ay of litigation, Mr. Hutter's request for a telephone conference, (dkt. no. 238), is presently denied. However, that denial is without prejudice and, once the stay has lifted, Mr. Hutter may reinstate by letter his request for a teleconference. A copy of this order has been mailed to Mr. Hutter. SO ORDERED. Case stayed. (Signed by Judge Loretta A. Preska on 5/6/2020) (va)

Case 1:16-cv-06586-LAP Document 239 Filed 05/06/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEVEN HUTTER,
Plaintiff,
No. 16 Civ. 6586 (LAP)

-against-

ORDER

COMMISSIONER DORA SCHRIRO, et
al.,
Defendants.

LORETTA A. PRESKA, Senior United States District Judge:
The attached order granting Defendants’ request for a 90
day stay of litigation until July 2, 2020, (dkt. no. 235), was
issued on April 3, 2020, but apparently was not docketed.
Accordingly, the order is re-issued today.
Given the stay of litigation, Mr. Hutter’s request for a
telephone conference, (dkt. no. 238), is presently denied.
However, that denial is without prejudice and, once the stay has
lifted, Mr. Hutter may reinstate by letter his request for a
teleconference.
A copy of this order has been mailed to Mr. Hutter.
SO ORDERED.
Dated:

New York, New York
May 6, 2020
__________________________________
LORETTA A. PRESKA
Senior United States District Judge

1

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THE CITY OF NEW YORK

LAW DEPARTMENT

JAMES E. JOHNSON
Corporation Counsel

SUZANNE FUNES
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Senior Counsel

100 Church Street
NEW YORK, NY 10007

April 3, 2020
VIA ECF
Honorable Loretta A. Preska
United States District Judge
Southern District of New York
500 Pearl Street
New York, NY 10007
Re: Steven Hutter v. Comm. Dora Schiaro, et al.,
16-CV-06586 (LAP)

Your Honor:
I am a Senior Counsel in the Office of James E. Johnson, Corporation Counsel of the City
of New York, and the counsel1  for defendants former Commissioner Dora Schriro, Warden
Hazel Jennings, Deputy Warden Monica Windley, Captain Barber, PA Jerry Liburd, Dr. Jane
San Jose, Dr. Gloria Ihenacho, Dr. Tahmina Sikder, PA Glenda Shearn, Correction Officer
Nelson, Correction Officer Morales, Maintenance Supervisor James Garrity, Captain Flores, P.A.
Kernold Alves, Dr. Harjinder Bhatti, Captain Andre Whyte, PA Allen Walker, and Warden
Raino Hills (collectively, “defendants”). Defendants respectfully request that the Court stay the
present civil proceeding in its entirety for ninety (90) days from today April 3, 2020 to July 2,
2020 in light of the recent developments surrounding the COVID-19 pandemic. This is
defendants’ first request for a stay of litigation in this matter. Defendants have not secured
plaintiff pro se’s consent for this application, as he is currently incarcerated and we have been
unable to meet and confer.
By way of background, plaintiff pro se commenced this lawsuit alleging, inter alia,
unconstitutional conditions of confinement and deliberate indifference to his medical needs
while housed on Rikers Island See Docket Entry No. 83.1. Recently, on March 5, 2020 plaintiff
filed a motion to compel, whereby plaintiff requested four sets of documents: 1) Employee Legal
1

This case is assigned to Assistant Corporation Counsel Joshua Kaufman, who is currently
awaiting admission to the Southern District of New York, and is handling this matter under my
supervision. Mr. Kaufman can be reached directly at 212-356-3521 or by email at:
[e-mail]. 

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Schedules for 2013; 2) Employee Schedules for 2019; (3) Pages 1-10 of the Elmhurst Prison
Ward Motor Vehicle Usage Log for the period August 2013 to September 2013; and (4) Pages
170-175 of the Elmhurst Hospital Prison Ward Motor Vehicle Usage Log for August 2017 to
September 2017. See Docket Entry No. 229, at page 1. On March 12, 2020, defendants filed an
opposition to plaintiff pro se’s motion to compel and further apprised the Court of the documents
defendants produced in response to plaintiff’s motion2, as well as the documents responsive to
plaintiff’s motion that defendants had previously produced to plaintiff. See Docket Sheet Nos.
230 and 235. On March 30, 2020, plaintiff pro se filed a reply to defendants’ opposition to
plaintiff’s motion to compel. See Docket Sheet No. 234. Defendants respectfully request a
ninety (90) day stay of this matter in light of the public health concern.
As the Court is aware, the country is currently grappling with the COVID-19, or
coronavirus, pandemic. On March 7, 2020, Governor Andrew Cuomo declared that New York is
in a state of emergency because of the rapidly developing pandemic situation. On March 13,
2020, Mayor Bill de Blasio followed suit, and declared New York City to be in a state of
emergency as well.
That same day, the United States District Court for the Southern District of New York
(“Southern District”) issued Standing Order 20 MISC 138, which encouraged individual judges
to conduct court proceedings by phone and video conferencing where practicable. Also on
March 13, 2020, the Southern District issued Standing Order 20 MISC 015, which suspended
and tolled service of process requirements and deadlines. On March 16, 2020, the Southern
District issued a Revised Standing Order that further limited access to courthouses.
On March 20, 2020, Governor Andrew Cuomo issued an executive order mandating that
all non-essential businesses in New York State close, and that New York residents stay inside
their homes unless participating in an essential activity. Also on March 20, 2020 and again on
March 30, 2020, the Southern District set forth additional emergency protocols, including
limitations on courtroom use and operations for both criminal and civil matters. To comply with
Governor Cuomo’s latest executive order, and in light of pronouncements from other
governmental and judicial officials, expert recommendations, and the further spread of COVID19, the New York City Law Department is requiring that the vast majority of its employees work
from home.
Of course, working from home creates a number of challenges that directly impact
litigation. For example, corresponding with incarcerated pro se plaintiffs is particularly difficult
in the context of a work from home situation, because the normal course of communication with
these individuals is through regular mail and via telephone communication. Defendants are not
physically present to receive mail sent to the office, and therefore are unable to reliably receive
correspondence from pro se plaintiffs. Indeed, working from home also complicates sending
correspondence to pro se plaintiffs.
As another example, working from home creates accessibility problems in regards to
documents and files. Although some documents can be easily accessed remotely by electronic
means, many documents cannot be so accessed, because of variables such as format or size. This

2

On March 17, 2020, plaintiff received documents responsive to his motion to compel. See
Docket Entry No. 234.

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inaccessibility prevents defendants from having all the information necessary to, inter alia, fully
assess cases, respond to plaintiff’s demands, and otherwise conduct regular business.
Finally, the agencies defendants must regularly communicate and coordinate with the
Department of Correction (“DOC”), who are facing these same communication and access
challenges as they pursue compliance with Governor Cuomo’s executive order and seek to
protect the health and safety of the individuals in their organizations. These challenges have
already made the fulfillment of document and information requests delayed or impracticable.
Such delays and problems are expected to continue until individuals are allowed to return to their
offices.
Moreover, the undersigned cannot take the necessary steps of seeking the production of
DOC documents related to plaintiff pro se’s incarceration, primarily because the individuals tasked
with producing essential litigation documents from the New York City Law Department and the
New York City Department of Correction are also working remotely with limited access to the
resources necessary to request and produce relevant documents as a result of the virus Citywide.
Accordingly, the undersigned respectfully requests that the Court grant defendants’
application for a ninety (90) day stay of litigation from April 3, 2020 to July 2, 2020.

Thank you for your consideration herein.
Respectfully submitted,
Suzanne Funes
Suzanne Funes
CC:

Steven Hutter #14A3871
Plaintiff Pro Se
Fishkill Correctional Facility
P.O. Box 1245
Beacon, NY 12508

In light of the circumstances, Defendants' request for a 90 day stay of
litigation until July 2, 2020 is granted. A copy of this order has been
mailed to Plaintiff Steven Hutter at his current address. SO ORDERED.
4/3/2020