McGriff v. Superintendent Keyser et al

Filing 31

ORDER: Considering the incredibly convoluted procedural history of this case, Plaintiffs pro se status, the interests of judicial economy, and Plaintiffs numerous attempts to seek leave to file an amended complaint, the Court grants Plaintiff leav e to file his amended complaint in the proper form of an amended complaint, which is not to be combined with his Motion Opposing Defendants' Motion to Dismiss. Plaintiff has until February 13, 2019 to formulate his amended complaint and serve it on Defendants. If Defendants' receive an amended complaint, then upon receipt of the Amended Complaint, and by no later than February 15, 2019, Defendants are to inform the Court as to whether they would like to rely on their pending Motion to Dismiss or whether they would like to withdraw their pending motion at ECF No. 25 and file a new motion to dismiss. Defendants are directed to file Plaintiffs Amended Complaint and their letter response on ECF by this date. Plaintiffs failure t o abide by this deadline will deem the original Complaint the operative Complaint once and for all, and the Court will make no further exceptions. Accordingly, the Clerk of the Court is respectfully directed to mail a copy ofthis order to Plaintiff at Plaintiffs last address listed on CEO and file proof of service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 1/9/2019) ( Amended Pleadings due by 2/13/2019.) (ks) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DEWITT McGRIFF,

USDCSDNY
DOCUMENT
,ELECTRONICALLY FILED
DOC.#:,
DATE FILED: \9 /19'

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Plaintiff,
17-cv-7307 (NSR)

-againstSUPERINTENDENT KEYSER; HEARING
OFFICER POLIZZI; DIRECTOR OF SHU
VENNETOZZI, in their official and individual
capacities,

ORDER

Defendants.

NELSON S. ROMAN, United States District Judge
Plaintiff DeWitt McGriff ("Plaintiff' or "McGriff') commenced the instant action on or
about September 22, 2017, by filing a complaint asserting claims sounding in 42 U.S.C. § 1983.
(See Complaint, ECF No. 2.) Soon after, Defendants sought and were granted leave to file a
Motion to Dismiss the Complaint with the following briefing schedule: Defendants' moving
papers to be served May 4, 2018; Plaintiffs opposition papers to be served June 4, 2018; and
Defendants' reply papers to be served June 19. 2018. (ECF No. 11.)
In accordance with the briefing schedule, Defendants timely served their moving papers
as directed. On June 5, 2018, in response to Defendants' Motion to Dismiss, Plaintiff attempted
to file Notice of Leave to file an Amended Complaint and a Proposed Amended Complaint in the
form of a brief that further detailed his claims. (ECF No. 15.) But Plaintiff submitted his Notice
and Amended Complaint without leave of court. (Id.) Consequently, on July 24, 2018, the Court
denied Plaintiffs Motion for Leave to Amend his Complaint, without prejudice, and gave
Plaintiff until August 29, 2018 to file a proper amended complaint in proper form. (ECF No. 21.)

On August 1, 2018, Plaintiff submitted a letter to the Court expressing great confusion
about the briefing schedule and asking the Court whether he needed to serve a new Notice of his
Motion to Amend to Defendants. (ECF No. 22.) Consequently, on August 6, this Court issued a
Memo Endorsement explaining that Plaintiff did not need to re-serve his motion. Rather:
•

The Court would deem Plaintiffs documents filed at ECF No. 19 sufficient for
Defendants to meet their August 8, 2018 deadline of serving Plaintiff with their
Opposition to Plaintiffs Motion to Amend.

•

Plaintiff would be required to serve a copy of his cross-reply in further support of
his Motion to Amend by August 29, 2018.

•

Defendants would be required to file all amendment motion-related documents,
including Plaintiffs papers, on the cross-reply date, August 29, 2018.

(ECF No. 23.)
On August 29, Defendants wrote a letter to the Court, stating that they had not received a
reply for their Opposition to Plaintiffs Motion to Amend, as due. (ECF No. 24.) Consequently,
Defendants' filed all of their motions, which included their Motion to Dismiss the original
Complaint, (ECF No. 25), a Memorandum in Support of their Motion to Dismiss the Complaint
(ECF No. 26), and a Reply Memorandum in further support of their Motion to Dismiss the
Complaint and in Opposition to Plaintiffs Motion to Amend (ECF No. 29.)
Oddly, through a deficient docket entry dated August 29, 2018, Plaintiff attempted to refile a Notice of Motion for Leave to Amend his Complaint, which was a brief that combined his
Proposed Amended Complaint with a Motion Opposing Defendants' Motion to Dismiss. (ECF
No. 27.) This filing was terminated later the same day. (See Dkt. Entry Dated 8/29/2018.)
To date, the only proper motion before the Court appears to be Defendant' Motion to
Dismiss the original Complaint. (ECF No. 25.) In addition, though there has never been a proper
amended complaint filed in the proper form of a complaint, Plaintiff has made a few misguided

efforts to file and argue for such a motion, which Defendants have opposed, (ECF No. 29), but to
which the Plaintiff has not yet replied.
Considering the incredibly convoluted procedural history of this case, Plaintiffs pro se
status, the interests of judicial economy, and Plaintiffs numerous attempts to seek leave to file
an amended complaint, the Court grants Plaintiff leave to file his amended complaint in the

proper form of an amended complaint, which is not to be combined with his Motion
Opposing Defendants' Motion to Dismiss. Plaintiff has until February 13, 2019 to formulate
his amended complaint and serve it on Defendants.
If Defendants' receive an amended complaint, then upon receipt of the Amended
Complaint, and by no later than February 15, 2019, Defendants are to inform the Court as to
whether they would like to rely on their pending Motion to Dismiss or whether they would like
to withdraw their pending motion at ECF No. 25 and file a new motion to dismiss. Defendants
are directed to file Plaintiffs Amended Complaint and their letter response on ECF by this date.
Plaintiffs failure to abide by this deadline will deem the original Complaint the operative
Complaint once and for all, and the Court will make no further exceptions.
Accordingly, the Clerk of the Court is respectfully directed to mail a copy ofthis order to
Plaintiff at Plaintiffs last address listed on CEO and file proof of service on the docket.

Dated:

January 9, 2019
White Plains, New York

SO ORDERED:

NELSON S. ROMAN
United States District Judge