Khudan v. Superintendent William Lee et al., No. 1:2012cv08147 - Document 55 (S.D.N.Y. 2015)

Court Description: OPINION AND ORDER re: 46 SECOND MOTION to Dismiss filed by Neal Greene, Jeffrey Erns, Duane Malark, "P" Allen, Robert Sherman, William Lee, Sandy Fila, Rory Hamilton, Kathy Panuto, David Deming. IT IS HEREBY ORDERE D THAT Defendants' motion to dismiss is DENIED without prejudice to renewal as a motion for summary judgment on the issue of administrative exhaustion. The Clerk of the Court is respectfully directed to terminate the motion pending at docket entry 46. Accordingly, IT IS FURTHER ORDERED THAT by October 8, 2015, the parties shall complete limited, expedited discovery on the narrow issue of whether Plaintiff exhausted his administrative remedies and, if not, whether his non-exhaustion is excused as to each of the Defendants. IT IS FURTHER ORDERED THAT Defendants shall file their motion for summary judgment on the issue of administrative exhaustion no later than October 29, 2015; Plaintiff shall file his opposition, if any, no l ater than November 19, 2015; and Defendants shall file their reply, if any, no later than November 30, 2015. The parties shall submit statements of material fact pursuant to Local Civil Rule 56.1 ("56.1 statements") in connection with D efendants' motion. In light of the foregoing, and the fact that-if the administrative exhaustion issue is not dispositive of this action-Defendants may renew their motion to dismiss on the other grounds raised in their brief, IT IS FURTHER ORDERED THAT Defendants' deadline to answer or otherwise respond to the Second Amended Complaint is ADJOURNED until after the Court has resolved Defendants' summary judgment motion or, if Defendants decline to file a summary judgment motion, to October 29, 2015. (As further set forth in this Opinion.) (Signed by Judge Richard J. Sullivan on 9/17/2015) (mro)