Levinson v. Federal Bureau of Prisons Metropolitan Corrections Center-NY Warden

Filing 25

ORDER granting 24 Letter Motion to Adjourn Conference. APPLICATION GRANTED: The telephonic Initial Case Management Conferences in this matter scheduled for Wednesday, June 2, 2021 at 2:00 p.m. is hereby rescheduled to Monday, July 26, 2021 at 12:00 p.m. It is hereby ORDERED that the Warden or other official in charge of the Bayside State Prison produce plaintiff Nikolay Levinson., Inmate Number 713775C, on July 26, 2021, no later than 12:00 p.m., to a suitable location within the Bayside State Prison that is equipped with a telephone, for the purpose of participating by telephone in a conference with the Court and defendants' counsel. If the scheduled time and date presents a hardship, the Warden or the Warden's designee s hould promptly inform chambers by calling [phone]. The Parties are directed to review Judge Parker's Individual Rules of Practice in Civil Cases attached to this order. Plaintiff should submit the Proposed Case Management Plan for Pro Se Cases and mail it to the Pro Se Intake Unit, U.S. District Court, 500 Pearl Street Room 200, New York, New York 10007 one week before the scheduled conference. Defendants' counsel must: (1) send this Order to the Warden immediately; (2) contact the Bayside State Prison to arrange the call and determine the telephone number at which the plaintiff will be reachable at the above time and date; (3) complete the Proposed Case Management Plan For Pro Se Plaintiffs and e-mail it to Parker_NYSDCham [e-mail], and (4) call Judge Parker's teleconference line at the scheduled time with the Plaintiff already on the phone. Please dial [phone], Access code: 4858267. The Defendant is directed to notify an Official at the Bayside State Prison that this proceeding has been rescheduled. The Clerk of Court is requested to mail a copy of this order to the plaintiff. Initial Conference set for 7/26/2021 at 12:00 PM before Magistrate Judge Katharine H. Parker.. (Signed by Magistrate Judge Katharine H. Parker on 5/26/2021) (nb) Transmission to Docket Assistant Clerk for processing.

U.S. Department of Justice
United States Attorney
Southern District of New York
05/26/2021

VIA ECF
The Honorable Katharine H. Parker
United States Magistrate Judge
United States Courthouse
500 Pearl Street
New York, NY 10007-1312
Re:

86 Chambers Street
New York, New York 10007

May 26, 2021

Levinson v. United States of America, Federal Bureau of Prisons, Metropolitan
Corrections Center—New York, et al., 20-cv-7375 (VEC) (KHP)

Dear Judge Parker:
This Office represents defendant United States of America (“United States”) in the
above-referenced action brought by pro se Plaintiff Nikolay Levinson (“Plaintiff”), in which he
asserts claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq.,
and the Bivens doctrine. I write to respectfully request a 30-day adjournment of the initial
conference currently scheduled for June 2, 2021 at 2 p.m., and a 30-day adjournment of the
United States’ deadline to file its Proposed Case Management Plan for Pro Se Cases. This
adjournment is requested because the summons and complaint have not been served on
defendants, and because my Office is presently engaged in determining whether it will represent
the individual defendants in this case.
On January 29, 2021, Judge Caproni entered an Order of Service directing the Clerk of
Court to issue summonses and deliver to the U.S. Marshals Services “all the paperwork
necessary for the Marshal Service to effect service upon [all] defendants.” ECF No. 10. On
February 3, 2021, a minute entry posted to the docket confirmed that the Fed. R. Civ. P. Rule 4
service package and Order of Service had been hand delivered to the Marshals Service.
However, no affidavit of service has been filed to date, and it does not appear that defendants
were served. As of yesterday, my Office’s internal records do not reflect that we were served 1,
and defendants Bureau of Prisons (“BOP”), Correction Officer Torres, and Yoon Kang indicated
that they had not been served. Defendant Mandeep Singh could not be reached.
We are sensitive to the fact that Plaintiff is currently incarcerated and with limited means
to effect service. Nevertheless, proper service of a summons and complaint must occur before
my Office can represent individuals in a Bivens action. Service will also commence defendants’
time to respond to the complaint. Although the Marshals Service maintains that it has served all
defendants in this action, it confirmed in email correspondence yesterday that it would re-serve
any defendants who have not received a copy of the complaint.
My Office received a copy of the complaint by mail on April 5, 2021 from the Clerk of Court. However, this mailing
appears to be in response to the Court’s March 31, 2021 Order Scheduling Initial Case Management Conference which
directed the Clerk of Court to mail a copy of the scheduling order and complaint to my Office. ECF No. 17. This
does not constitute service.

1

We also request an adjournment to permit sufficient time to determine representation of
the individual defendants in this action. Before representing any individual in a Bivens action,
my Office must engage in a process to obtain authority from the U.S. Department of Justice.
This process can be lengthy and requires multiple levels of review and approval. While already
underway, the failure to serve defendants has delayed the process and additional time is needed
to obtain the necessary approvals.
In light of these concerns, this Office is not presently in a position to file a proposed case
management plan or appear on behalf of defendants at the initial conference scheduled for next
week. Accordingly, the United States respectfully requests a 30-day adjournment of the initial
conference from June 2 to July 2, 2021, a 30-day adjournment of its deadline to file a proposed
case management plan from May 26 to June 25, 2021, and an order directing the Marshals
Service to file an affidavit of service once service is complete. This is the United States’ first
request for an adjournment.
We thank the Court for its consideration of this matter.
Respectfully,
AUDREY STRAUSS
United States Attorney for the
Southern District of New York
By:

Cc:

Nikolay Levinson
Plaintiff Pro Se
#713775C
Bayside State Prison
P.O. Box F01
Leesburg, NJ 08327

2

/s/ Carly Weinreb
CARLY WEINREB
Assistant United States Attorney
86 Chambers Street, Third Floor
New York, NY 10007
Tel: [phone]
[e-mail]

APPLICATION GRANTED: The telephonic Initial Case Management Conferences in this matter
scheduled for Wednesday, June 2, 2021 at 2:00 p.m. is hereby rescheduled to Monday, July 26, 2021
at 12:00 p.m. It is hereby ORDERED that the Warden or other official in charge of the Bayside State
Prison produce plaintiff Nikolay Levinson., Inmate Number 713775C, on July 26, 2021, no later than
12:00 p.m., to a suitable location within the Bayside State Prison that is equipped with a telephone,
for the purpose of participating by telephone in a conference with the Court and defendants' counsel.
If the scheduled time and date presents a hardship, the Warden or the Warden's designee should
promptly inform chambers by calling [phone]. The Parties are directed to review Judge
Parker's Individual Rules of Practice in Civil Cases attached to this order. Plaintiff should submit the
Proposed Case Management Plan for Pro Se Cases and mail it to the Pro Se Intake Unit, U.S. District
Court, 500 Pearl Street Room 200, New York, New York 10007 one week before the scheduled
conference. Defendants' counsel must: (1) send this Order to the Warden immediately; (2) contact the
Bayside State Prison to arrange the call and determine the telephone number at which the plaintiff
will be reachable at the above time and date; (3) complete the Proposed Case Management Plan For
Pro Se Plaintiffs and e-mail it to [e-mail], and (4) call Judge
Parker's teleconference line at the scheduled time with the Plaintiff already on the phone. Please dial
[phone], Access code: 4858267.
The Defendant is directed to notify an Official at the Bayside State Prison that this proceeding has
been rescheduled.
The Clerk of Court is requested to mail a copy of this order to the plaintiff.

05/26/2021