Davis v. Rynkewicz et al

Filing 19

-CLERK TO FOLLOW UP-ORDER re 16 MOTION for Extension of Time to File response to plaintiff's discovery demands and for clarification of Court's screening order filed by Jason Rynkewicz, S. Furlani, Steven Casaceli, Anthony Theriault. Signed by Hon. H. Kenneth Schroeder, Jr on 1/14/2013. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LAVAR DAVIS, 97-A-4572,
Plaintiff,

11-CV-431(Sr)

v.
C.O. JASON RYNKEWICZ,
CAPTAIN STEVEN CASACELI,
SGT. ANTHONY THERIAULT,
S. FURLANI,
D.SS. THOMAS STICHT, and
DIR. OF S.H.U. ALBERT PRACK,
Defendants.

ORDER
By Order entered March 19, 2012, the Court dismissed plaintiff’s claims
against Thomas Sticht, Deputy Superintendent of Security at the Wende Correctional
Facility, with prejudice unless plaintiff filed an amended complaint alleging his personal
involvement in the alleged deprivation of plaintiff’s constitutional rights. Dkt. #4, p.7. In
response, plaintiff informed the Court that he wished to withdraw his claims against
Deputy Superintendent of Security Thomas Sticht and remove him as a defendant in
this action. Dkt. #5, ¶ 6.

By Order entered March 19, 2012, the Court directed plaintiff to amend
his complaint to either withdraw his claims challenging all of the sanctions imposed due
to his disciplinary convictions following hearings conducted on February 5, 2010 by
defendant Furlani (and affirmed by defendant Prack) and October 7, 2010 by defendant

Casaceli, each of which resulted in a loss of good time, or provide the Court with an
amended complaint forgoing once and for all any challenge to any sanctions that affect
the duration of his confinement. Dkt. #4, pp.7-11. In response, plaintiff informed the
Court that his complaint alleged that he “is not seeking to challenge any loss of good
time” (Dkt. #1, p.48), and reiterated that
I am not seeking to challenge any loss of good-time that has
been taken from me pursuant to the dispositions rendered
by S. Furlani on February 5, 2010 and by Steven Casaceli
on October 7, 201[0] who I filed a complaint against for
violating my 14th Amendment right by denying me witnesses
and subjecting me to extensive unlawful confinement in
violation of my 8th Amendment right. Albert Prack as well.
Dkt. #5, ¶ 4. Accordingly, plaintiff “waive[s] any and all perceived challenges within my
complaint to any sanctions that will affect my confinement in keeping with the ruling in
Peralta v. Vasquez . . . “ Dkt. #5, ¶ 5.

On July 13, 2012, the Clerk of the Court issued summons for all
defendants except defendants Sticht and Prack. Defendants Rynkewicz, Casaceli,
Theriault and Fulani filed their Answer on November 5, 2012. Dkt. #13.

Currently before the Court is defendants’ motion to clarify the Court’s
Order (Dkt. #4), to address whether plaintiff’s failure to file an amended complaint
resulted in the dismissal of plaintiff’s claims of denial of due process against
defendants Casaceli, Furlani and Prack and to extend defendants’ time to respond to
plaintiff’s discovery for 30 days following this Court’s clarification of that Order. Dkt.
#17.
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Plaintiff responds that he complied with the substance of the Court’s
Order entered March 19, 2012 by confirming his waiver of any challenge to his loss of
good time thereby allowing his denial of due process claims against defendants
Casaceli, Furlani and Prack to proceed and requests service upon defendant Prack.
Dkt. #18.

As plaintiff has clearly waived any challenge to any sanctions that affect
the duration of his confinement (Dkt. #1, p.48; Dkt. #5 & Dkt. #18), his denial of due
process claims against defendants Casaceli, Furlani and Prack may proceed.

The Clerk of the Court is directed to issue summons to defendant Prack.

The Clerk of the Court is directed to terminate Thomas Sticht as a party to
this action.

Defendants shall respond to outstanding discovery no later than 30 days
from the filing of a Case Management Order in this matter.

SO ORDERED.

DATED:

Buffalo, New York
January 14 , 2013
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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