Carmichael v. Morrison Management Specialists et al

Filing 16

ORDER Plaintiff to file affidavit or declaration as well as a memorandum of law as specifically directed on or before 8/29/2013. Defendants Morrison and ECMC shall file brief responses to plaintiff's memorandum of law on or before 9/16/2013. Signed by Hon. Richard J. Arcara on 8/13/2013. (JMB)

Carmichael v. Morrison Management Specialists et al

Doc. 16

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
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DARRYL L. CARMICHAEL,
Plaintiff,

v.

ORDER
13-CV-692-A

MORRISON MANAGEMENT
SPECIALISTS and ERIE
COUNTY MEDICAL CENTER,
Defendants.
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This pro se disability-discrimination case is brought by the plaintiff, Darryl L.
Carmichael, against the defendants, Morrison Management Specialists
(“Morrison”), and Erie County Medical Center (“ECMC”), under the Americans
with Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117 ("ADA") and New York
State Human Rights Law, N.Y. Exec. Law §§ 290-297. The action is before the
Court on defendant Morrison’s and defendant ECMC’s motions pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff Carmichael’s
Complaint for failure to state a claim upon which relief can be granted.
Upon preliminary review of plaintiff Carmichael’s Complaint and defendant
Morrison’s and defendant ECMC’s motions to dismiss, it appears that summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, or partial
summary judgment, may be appropriate. Therefore, before the parties take

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additional steps in the action, it is
ORDERED, that the Court on its own, pursuant to Rules 12(d) and 56(f)(3)
of the Federal Rules of Civil Procedure, will consider entering summary judgment
or partial summary judgment on the ADA claim in plaintiff’s Complaint. The
following alleged facts appear to the Court likely to be undisputed. Plaintiff
Carmichael shall, by August 29, 2013, file an affidavit or a declaration made
under penalty of perjury responding separately to each of the following numbered
paragraphs stating whether these alleged facts are undisputed and, if disputed,
why:
1. Attached to the Complaint at page 14 is a true and
accurate copy of a letter dated February 5, 2013, from
Richard H. Wyssling, Esq., addressed to plaintiff
Carmichael (the “February 5, 2013 letter”).
2. On and around February 5, 2013, Mr. Wyssling was
plaintiff Carmichael’s attorney concerning the matters
addressed in the February 5, 2013 letter that are the
subject of plaintiff’s ADA claim in the Complaint.
3. On February 5, 2013, plaintiff Carmichael’s attorney,
Mr. Wyssling, understood that plaintiff was required to file
an ADA action based upon the allegations against
defendant Morrison and defendant ECMC that plaintiff had
presented to the Equal Employment Opportunity
Commission (the “EEOC”) within a maximum of 90 days.
4. This action was filed more than 90 days after February
5, 2013.
5. This action was filed more than 90 days after plaintiff
Carmichael received the February 5, 2013 letter from
Mr. Wyssling.
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6. Plaintiff Carmichael was informed by the February 5,
2013 letter from Mr. Wyssling that plaintiff was required
to file any ADA action in court based upon the
allegations against defendant Morrison and defendant
ECMC plaintiff had presented to the EEOC within a
maximum of 90 days.
7. Before April 2, 2013, plaintiff Carmichael knew that he
or an attorney on his behalf were required to file any ADA
action in court arising from the allegations plaintiff made to
the EEOC against defendant Morrison and defendant
ECMC within a 90-day limitations period.
8. April 2, 2013 is 90 days prior to July 1, 2013.
9. No conduct of defendant Morrison, defendant ECMC,
Mr. Wyssling, or the Court contributed to plaintiff
Carmichael not filing this action before July 1, 2013.
It is further
ORDERED, on or before August 29, 2013, plaintiff Carmichael shall file a
memorandum of law addressing whether, based upon undisputed facts, the Court
should find pursuant to Rule 56 of the Federal Rules of Civil Procedure that
plaintiff and plaintiff’s attorney, Mr. Wyssling, each had adequate notice more
than 90 days before July 1, 2013 of the issuance of a Right to Sue letter by the
United States Department of Justice concerning allegations plaintiff made to the
EEOC against defendant Morrison and defendant ECMC that are the subject of
plaintiff’s ADA claim in the Complaint. It is further
ORDERED, that defendants Morrison and ECMC shall file brief responses
to plaintiff Carmichael’s memorandum of law on or before September 16, 2013. It

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is further
ORDERED, that plaintiff Carmichael shall not file responses to the Rule
12(b)(6) motions to dismiss of defendant Morrison and defendant ECMC at this
time. It is finally
ORDERED, pursuant to L. R. Civ. P. 83.3(a) and N.Y. Rules of Prof'l
Conduct R. 1.2(c), 22 NYCRR Part 1200 (2012), any future filings on behalf of
plaintiff Carmichael prepared with the assistance of an attorney shall be clearly
marked to indicate the filing was prepared with the assistance of an attorney.
SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: August 13, 2013

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