Candelaria v. Higley, et al

Filing 49

ORDER denying 48 Motion for Additional Time to File Third Amended Complaint; granting 48 Motion to Compel Defendants to Answer the Second Supplemental Complaint no later than 3/13/2009.. Signed by Hon. H. Kenneth Schroeder, Jr on 2/24/2009. (KER)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK JUAN CANDELARIA, 89-T-5069, Plaintiff, 04-CV-0277E(Sr) LAURENCE HIGLEY, et al., Defendants. D E C IS IO N AND ORDER P la in tif f filed his original complaint on April 9, 2004. Dkt. #1. Since that tim e , he has filed an amended complaint (Dkt. #4), and supplemental complaint (Dkt. # 1 3 ), moved to withdraw the action (Dkt. #14), moved to reopen the action (Dkt. #16), a n d filed a second supplemental complaint. Dkt. #21. Following an Order granting defendants' motion to dismiss several of the d e f e n d a n ts and several causes of action (Dkt. #44), plaintiff advised the Court that he in te n d e d to file a third amended complaint, prompting the Court to stay defendants' d e a d lin e to answer. Dkt. #46. By motion dated February 18, 2009, plaintiff complains that the transfer of h is legal papers has been delayed following his recent transfer to Green Haven C o rre c tio n a l Facility and states, "if I cannot complete the underlying proposed third a m e n d e d complaint within the next three month[s] due to lack of access to law library/legal supplies, I hereby ask that the defendants be directed to answer the second s u p p le m e n ta l complaint in [the] Court's file." Dkt. #48. The Court is concerned that although this was commenced in 2004 and in v o lv e s incidents alleged to have occurred as far back as 2001, this case has remained a t a standstill and no discovery has taken place. The Court notes that plaintiff first e x p re s s e d his intent to file a third amended complaint on April 2, 2008. As the motion to dismiss the second supplemental complaint has been re s o lv e d and the second supplemental complaint is, therefore, currently in a procedural p o s tu re to move forward, the Court declines to delay this action further and directs that d e f e n d a n ts answer the second amended complaint no later than March 13, 2009. SO ORDERED. DATED: Buffalo, New York February 24, 2009 S/ H. Kenneth Schroeder, Jr. H. KENNETH SCHROEDER, JR. United States Magistrate Judge

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