Mojica v. Murphy et al, No. 9:2017cv00324 - Document 99 (N.D.N.Y 2020)
Court Description: DECISION AND ORDER: It is ORDERED that Defendants' # 66 motion for summary judgment based on failure to exhaust is DENIED; Plaintiff's # 97 motion to amend is DENIED; The following claims remain for trial: (1) excessive force against all defendants; and (2) failure to intervene against defendant Murphy; Trial is tentatively scheduled for September 14, 2020 at 9:30 a.m. in Utica, New York. Pre-trial submissions are due on or before August 31, 2020; The parties are reminded that they have the option of referring this case to Magistrate Judge Lovric, pursuant to 28 U.S.C. § 636(c)) and based on his familiarity with the case, but are free to withhold consent without adverse substantive consequences. The parties are dir ected to advise the Court on or before April 17, 2020 whether or not a consent to a jury trial before him will be executed; and If plaintiff wishes to renew his motion for the appointment of pro bono trial counsel, he must do so within thirty (30) days of the date of this Decision and Order. Signed by Judge David N. Hurd on March 9, 2020. (Copy served via regular mail)(rep)
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Mojica v. Murphy et al Doc. 99 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------DIONISIO MOJICA, Plaintiff, -v- 9:17-CV-324 (DNH/ML) GEORGE MURPHY, Lieutenant, Great Meadow Correctional Facility, formerly known as John Murphy; CHARLES SHARROW, Correctional Officer, Great Meadow Correctional Facility, formerly known as John Sharrow; and C.O. B. COSEY, Great Meadow Correctional Facility, formerly known as John Doe #1, Defendants. -------------------------------APPEARANCES: OF COUNSEL: DIONISIO MOJICA Plaintiff pro se 95-A-2455 Sullivan Correctional Facility Box 116 Fallsburg, NY 12733 HON. LETITIA JAMES Attorney General for the State of New York Attorney for Defendants The Capitol Albany, NY 12224 KEITH J. STARLIN, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge Dockets.Justia.com DECISION and ORDER Pro se plaintiff Dionisio Mojica brought this civil rights action pursuant to 42 U.S.C. § 1983. On January 23, 2020, the Honorable Miroslav Lovric, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion for summary judgment based on failure to exhaust be denied. No objections to the Report-Recom mendation were filed. However, on March 4, 2020, plaintiff filed a motion to amend. Based upon a careful review of entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). With respect to plaintiff's motion to amend, he seeks to "clear up discrepencies [sic] in the defendants [sic] name(s); specific details of the Actions taken and or how the defendants failed to Act." ECF No. 97–1. As with his previous motion to amend (ECF No. 88) which Magistrate Judge Lovric denied, plaintiff's proposed Amended Complaint does not allege any changes to the causes of action. After careful consideration, plaintiff's motion to amend will be denied for the same reasons set forth by Magistrate Judge in addressing plaintiff's prior motion to amend. Therefore, it is ORDERED that 1. Defendants' motion for summary judgment based on failure to exhaust is DENIED; 2. Plaintiff's motion to amend is DENIED; 3. The following claims remain for trial: (1) excessive force against all defendants; and (2) failure to intervene against defendant Murphy; -2- 4. Trial is tentatively scheduled for September 14, 2020 at 9:30 a.m. in Utica, New York. Pre-trial submissions are due on or before August 31, 2020; 5. The parties are reminded that they have the option of referring this case to Magistrate Judge Lovric, pursuant to 28 U.S.C. § 636(c)) and based on his f amiliarity with the case, but are free to withhold consent without adverse substantive consequences. The parties are directed to advise the Court on or before April 17, 2020 whether or not a consent to a jury trial before him will be executed; and 6. If plaintiff wishes to renew his motion for the appointment of pro bono trial counsel, he must do so within thirty (30) days of the date of this Decision and Order. IT IS SO ORDERED. Dated: March 9, 2020 Utica, New York. -3-
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