Hamilton v. Fischer et al
DECISION & ORDER and AMENDED SCHEDULING ORDER granting 58 Motion to Reopen Discovery and to Extend the Dispostive Motion Deadline. The current scheduling order 48 shall be amended as follows: Discovery is reopened limited to discovery relating to the excessive force claim against Captain Robinson and the due process claim relating to the denial of eyeglasses during the disciplinary hearing. Such discovery shall conclude on 8/1/2017. Motions to Compel due by 8/1/2017. Dispositive Motions du e by 10/2/2017. Responses due by 11/2/2017. Replies due by 11/24/2017. Signed by Hon. Marian W. Payson on 4/28/2017. Copy of Decision & Order and Amended Scheduling Order sent by First Class Mail to plaintiff Derrick Hamilton on 4/28/2017. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER and
AMENDED SCHEDULING ORDER
CAPTAIN C. ROBINSON, et al.,
Plaintiff Derrick Hamilton (“Hamilton”) has sued several Department of
Corrections and Community Supervision (“DOCCS”) employees, including Corrections Officer
Burgio, Corrections Officer Dusterhus, Captain Robinson, and Sergeant Corcoran,1 alleging
violations of his constitutional rights under 42 U.S.C. § 1983. (Docket ## 1; 21 at 44-45). The
claims arise out of Hamilton’s incarceration at Attica Correctional Facility. (Id.).
On December 14, 2015, defendants filed a motion seeking an extension of time to
conduct discovery and file dispositive motions. (Docket # 58). In their motion, defendants
acknowledge that the Court’s scheduling order required discovery to be completed by June 13,
2014, and dispositive motions to be filed on or before January 16, 2015 (Docket ## 30; 48; 58-1
at ¶ 11), but argued that good cause existed to extend these deadlines in this case (Docket # 58-1
at ¶¶ 7-12). According to defendants, on December 7, 2015, the district court issued a decision
on a motion for summary judgment filed by one of the defendants. (Docket # 56). In that
decision, which was issued after the deadlines for discovery and dispostive motions had passed,
the district court denied Captain Robinson’s motion for summary judgment on Hamilton’s
The complaint also asserted claims against DOCCS and several other employees, which have been
dismissed. (Docket ## 3, 21).
excessive force claim and reinstated Hamilton’s previously dismissed due process claim.
(Docket ## 56; 58-1 at ¶¶ 7, 9-11). Defendants now seek to reopen discovery in order to permit
them to conduct additional discovery, including a deposition of Hamilton, relating to the
excessive force and due process claims. (Docket # 58-1 at ¶ 14). They also request permission
to file a dispositive motion relating to these claims after discovery is concluded. (Id. at ¶ 15).
On December 15, 2015, the district court issued a notice requiring Hamilton to
respond by December 30, 2015. At Hamilton’s request, the district court extended this deadline
three times before referring the motion to this Court for resolution on June 15, 2016. (Docket
## 60, 62, 64, 67, 68). On June 16, 2016, this Court issued a motion scheduling order requiring
Hamilton to respond to defendants’ motion by no later than July 8, 2016. (Docket # 69). At
Hamilton’s request, the Court extended his deadline to respond to July 29, 2016. (Docket # 72).
Despite requesting several extensions and being granted in excess of seven months to respond to
the motion, Hamilton has never filed an opposition to defendants’ request to reopen discovery
and to extend the dispositive motion deadline.
“Failure to oppose a pending motion may be fairly construed as a lack of
opposition to the requested relief or as a waiver of the party’s right to be heard in connection
with the motion.” Ellison v. Allstate Indem. Co., 2013 WL 6191576, *1 (W.D.N.Y. 2013) (citing
TCPIP Holding Co. v. Haar Commc’ns Inc., 2004 WL 1620950, *4 (S.D.N.Y. 2004)
(defendant’s failure to respond to motion was sufficient basis to grant motion by default) and
Loew v. Kolb, 2003 WL 22077454, *1 (S.D.N.Y. 2003) (same)). In this case, the motion
scheduling order afforded Hamilton sufficient time to respond to the pending motion. Hamilton
has not opposed the pending motion, and nothing in the docket suggests that Hamilton’s failure
to respond was an oversight. Rather, Hamilton’s repeated requests for extensions demonstrate
that he was well aware of the deadlines set by the Court. Accordingly, defendants’ motion to
reopen discovery and to extend the dispositive motion deadline (Docket # 58) is GRANTED. It
ORDERED, that the current scheduling order (Docket # 48) is amended as
Discovery is reopened limited to discovery relating to the excessive force
claim against Captain Robinson and the due process claim relating to the denial of eyeglasses
during the disciplinary hearing. Such discovery shall conclude on August 1, 2017. All motions
to compel discovery shall be made returnable on or before August 1, 2017.
Any dispositive motions relating to those two claims shall be filed no later
than October 2, 2017. NOTE: If the dispositive motion is filed against a party who is
appearing in this action pro se, the moving party must include the advisement set forth in
the notice attached to this Order.
Responding papers are due by November 2, 2017. Reply papers, if any,
shall be filed by November 24, 2017. The motion will be taken under advisement without oral
If no dispositive motions are filed, defense counsel shall notify the Court
in writing on or before the dispositive motion deadline date.
No extension of the above cutoff dates will be granted except upon written
joint motion, filed prior to the cutoff date, showing good cause for the extension.
In accordance with Fed. R. Civ. P. 16(f), if a party or party’s attorney
fails to obey this scheduling order or fails to participate in good faith, this Court will enter
appropriate sanctions against that party or that party’s attorney, including dismissal of
this action, if appropriate.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
April 28, 2017
PRO SE NOTICE
Plaintiff is hereby advised that the defendant has asked the Court to decide this case
without a trial, based on written materials, including affidavits, submitted in support of the
motion. THE CLAIMS PLAINTIFF ASSERTS IN HIS/HER COMPLAINT MAY BE
DISMISSED WITHOUT A TRIAL IF HE/SHE DOES NOT RESPOND TO THIS
MOTION by filing his/her own sworn affidavits or other papers as required by Rules 56(c)
and (e) of the Federal Rules of Civil Procedure. An affidavit is a sworn statement of fact
based on personal knowledge that would be admissible in evidence at trial.
In short, Rule 56 provides that plaintiff may NOT oppose summary judgment
simply by relying upon the allegations in the complaint. Rather, plaintiff must submit
evidence, such as witness statements or documents, countering the facts asserted by the
defendant and raising issues of fact for trial. Any witness statements, which may include
plaintiff’s own statements, must be in the form of affidavits. Plaintiff may file and serve
affidavits that were prepared specifically in response to defendant’s motion for summary
Any issue of fact that plaintiff wishes to raise in opposition to the motion for
summary judgment must be supported by affidavits or by other documentary evidence
contradicting the facts asserted by defendant. If plaintiff does not respond to the motion
for summary judgment on time with affidavits or documentary evidence contradicting the
facts asserted by defendant, the Court may accept defendant’s factual assertions as true.
Judgment may then be entered in defendant’s favor without a trial.
Pursuant to Rules 7(a) and 56(a) of the Local Rules of Civil Procedure for the
Western District of New York, plaintiff is required to file and serve the following papers in
opposition to this motion: (1) a memorandum of law containing relevant factual and legal
argument; (2) one or more affidavits in opposition to the motion; and (3) a separate, short,
and concise statement of the material facts as to which plaintiff contends there exists a
genuine issue to be tried, followed by citation to admissible evidence. In the absence of
such a statement by plaintiff, all material facts set forth in defendant’s statement of
material facts not in dispute will be deemed admitted. A copy of the Local Rules to which
reference has been made may be obtained from the Clerk’s Office of the Court.
If plaintiff has any questions, he/she may direct them to the Pro Se Office.
Plaintiff must file and serve any supplemental affidavits or materials in opposition
to defendant’s motion no later than the date they are due as provided in Rule 7(b) of the
Local Rules of Civil Procedure for the Western District of New York.
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