Thurmond v. Thomas-Walsh et al

Filing 115

ORDER denying 108 Motion for Sanctions; denying without prejudice 109 Motion for Summary Judgment. Based on the representations made herein, Plaintiff's request for sanctions is not supported by fact or law, and is therefore denied. Furth er, Plaintiff's cross-motion for summary judgment is denied without prejudice to renewal because (1) Plaintiff filed such motion without first seeking the Court's leave ; and (2) it is premature at this stage. Plaintiff, should he seek to c ross-move for summary judgment, must comply with the Court's Individual Practices Rule 4.E. Defendants' counsel is directed to serve a copy of this Order on Plaintiff and to file proof of service on the docket. The Clerk of the Court is respectfully directed to terminate the motion sequence pending at Doc. 108 and Doc. 109. So Ordered.. (Signed by Judge Philip M. Halpern on 3/9/2022) (js)

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Based on the representations made herein, Plaintiff's request for sanctions is not
supported by fact or law, and is therefore denied. Further, Plaintiff's cross-motion for
summary judgment is denied without prejudice to renewal because (1) Plaintiff filed
such motion without first seeking the Court's leave; and (2) it is premature at this
stage. Plaintiff, should he seek to cross-move for summary judgment, must comply
with the Court's Individual Practices Rule 4.E.
STATE OF NEW YORK

Defendants' counsel is directed to serve a copy of this Order on Plaintiff and to file
OFFICE OF THE ATTORNEY GENERAL
proof of service on the docket.
LETITIA JAMES
ATTORNEY GENERAL

DIVISION OF REGIONAL OFFICES

WESTCHESTER REGIONAL OFFICE
The Clerk of the Court is respectfully directed to terminate the motion sequence
pending at Doc. 108 and Doc. 109.

SO ORDERED.

March 8, 2022

Hon. Philip M. Halpern
_______________________
United States District Court
Philip M. Halpern
Southern District of New York
United States District Judge
300 Quarropas Street
Dated: White Plains, New York
White Plains, NY 10601
March 9, 2022

Re:

Thurmond v. Avion Thomas-Walsh et al., 7:18-cv-00409 (PMH-JCM)

Dear Honorable J. Halpern:
In this 42 U.S.C. § 1983 action, this Office represents Defendants Avion Thomas-Walsh
P.A. and Dr. Frederick Bernstein. The remaining claim in this action is plaintiff’s First
Amendment claim against Def. Thomas-Walsh alleging a retaliatory change in his medication on
May 29, 2014 in reponse to a grievance and a supervisory claim against Def. Bernstein based on
Def. Walsh’s alleged retaliatory act. Defendants submit this letter opposing Plaintiff’s motion
for sanctions because (1) it is disingenuous and made a bad faith and (2) there is not a legal basis
for sanctions based on the mailing of an order, particulary nearly two months before Plaintiff’s
response is due.
On 2/1/2022, Defendants uploaded a pre motion letter and R. 56.1 statement to the docket.
(ECF No. 104). On 2/2/2022, staff mailed Defendants’ pre motion letter and 56.1 statement to
Plaintiff. (see below, email confirmation). On 2/16/2022, this Court issued a order granting
Defendants request for leave to file for summary judgment. (ECF No. 106). Per the order,
Plaintiff’s opposition is due 4/18/2022. The order was mailed on 2/23/2022 by support staff in
the Attorney General’s office and notarized by AAG Scolavino (see attached).
1. Defendants’ ask the Court to deny Plaintiff’s disingenous and bad faith motion for
sanctions.
Per the Court order, there was not a date for mailing of the Order of the summary judgment
schedule. Plaintiff’s claim that he is somehow disadvantaged and says he could have used the

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seven days to prepare a cross motion. Defendants view this as odd because cross-motions are
normally filed after or at the same time as the initial movant’s motion, not before. See Pouncy v.
Advanced Focus, LLC, 763 F. App'x 134, 135 (2d Cir. 2019) (summary order); Lyons v. Lancer
Ins. Co., 681 F.3d 50, 56 (2d Cir. 2012)) (Parties may cross-move for summary judgment.
Basically, this means that when one party moves for summary judgment, the opposing party can
separately move to have summary judgment entered in its favor on the same or different issues.
When the parties cross-move for summary judgment, the court considers each motion
independently).
Yet despite this complaint, Plaintiff has already filed a cross-motion for summary
judgment and Defendants have not yet filed the initial motion. Plaintiff also quickly filed without
filing a pre motion letter or obtaining permission from the Court. Also, Plaintiff received
Defendants’ pre-motion letter and 56.1 statement well before the Court issued an order granting
summary judgment and a schedule as it was mailed on 2/2/2022 (see attached), which is most
likely what Plaintiff relied on to file a pre-mature cross-motion well before Defendant’s motion
for summary judgment.
In addition, although Plaintiff does not appreciate the sheer volume of cases in our office
or the size of our office, or staffing issues in the office, the fact remains that matters are handled
based on deadlines and priority of work (a motion or deposition over a letter or scanning). Without
having to provide attorney work schedules, schedule of court hearings in state and federal court
or the amount of support staff in our office, there was nothing wrong in mailing the order on 2/23
well in advance of Defendants moving documents and Plaintiff’s response due date.
2. There is not a legal basis for sanctions.
Plaintiff does not cite to a legal reason for sanctions as there is not a legal basis for sanctions
based on the allegation that the undersigned mailed a summary judgment schedule on 2/23/2022.
See 28 USC 28 U.S.C. § 1927 (Section 1927) (sanctions for unreasonable and vexatious conduct
that results in excessive litigation costs, here plaintiff claims poverty) or under the Federal Rules
of Civil Procedure (FRCP) 11(c) (sanctions for frivolous pleadings, motions, and other papers –
here the Court order is not frivolous); FRCP 26(g)(3) (sanctions relating to incomplete or incorrect
initial or pretrial disclosures, or improper discovery requests, responses, or objections,); and FRCP
37 (sanctions for the failure to make required disclosures or cooperate in discovery because here
we are post discovery).
In conclusion, there is not a legal or factual basis for sanctions and Defendants request that
Plaintiff’s motion be denied. A copy of the order and cited documents are enclosed below:

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Respectfully submitted,
Janice Powers, Esq.
Assistant Attorney General
cc: Kevin Thurmond (00-A-5247) Woodbourne Correction Facility 99 Prison Road P.O. Box
1000 Woodbourne, NY 12788