Opinion
Civil No. 9:97-CV-00274 (NAM/GLS)
February 27, 2003
ADAM ABDUL HAKEEM, Plaintiff, Pro Se, Fallsburg, NY., For The Plaintiff.
HON. ELIOT SPITZER SEAN M. SEELY, ESQ., Attorney General State of New York JEFFREY P. MANS, ESQ. Department of Law Asst. Attorney Generals, Albany, New York., for defendant.
REPORT-RECOMMENDATION
I. INTRODUCTION
This matter has been referred to the undersigned for a Report-Recommendation by the Honorable Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c).
As a preliminary matter, the court notes that the original complaint in this case was filed on March 3, 1997. Since that time, this action has been delayed by numerous appeals to the Second Circuit. On August 7, 2002, the Second Circuit affirmed the district court's decision to deny injunctive relief against non-parties to the suit and dismissed the remaining claims because the district court's rulings did not qualify as a final decision. See Dkt. No. 116.
On March 27, 1998, defendants James Stinson, David Carpenter, John Maloy, Lt. Fish, Lt. Cahill, K. Bump, Richard Rodriquez, C. Wronski and Sylvia Laguna filed a motion to dismiss in regards to the conspiracy claims, and a summary judgment motion as to the remaining causes of action (Dkt. No. 45). On April 7, 1998, plaintiff, pro se Adam Abdul Hakeem ("Hakeem") filed an amended complaint adding five new defendants (Dkt. No. 51). Subsequently, Hakeem filed a cross-motion for summary judgment on September 14, 1998 (Dkt. No. 86). After reviewing Hakeem's claims and for the reasons set forth below, both motions should be denied as moot and the case referred to this court for the issuance of a new scheduling order.
Hakeem added Thomas Goetz, James Gleason, Clark Wilson, Kenneth Shannon and Charles Davis.
II. Discussion
Hakeem brings this action under 42 U.S.C. § 1983 claiming that the defendants violated his civil rights under the First, Fifth, Sixth, Eighth and Fourteenth Amendments. Specifically, Hakeem alleges that the defendants retaliated and conspired against him by filing a false misbehavior report. He also accuses the defendants of preventing him from attending his Tier III hearing or, alternatively, allowing him to submit a statement regarding the misbehavior report. Hakeem further claims that the defendants held him in keeplock confinement illegally and failed to provide him medical care.
The court notes that Hakeem's Eighth Amendment medical treatment claim would not likely withstand future scrutiny since he fails to mention any defendants by name.
The current motion to dismiss as to the conspiracy claims and the summary judgment motions as to the remaining claims were based on the original complaint (Dkt. No. 1). The amended complaint adds new defendants which were not addressed in the original motion filed by the defendants. As such, some defendants would automatically remain if the court was to rendered a recommendation in this case. In an effort to promote justice and judicial economy, this court recommends denying the defendants' motion since it fails to address the role of the new defendants, since it seeks to dismiss a complaint which has now been superseded. In addition, this court recommends that Hakeem's cross-motion for summary judgment should be denied as moot.
WHEREFORE, for the foregoing reasons, it is hereby
RECOMMENDED, that the defendants' motion (Dkt. No. 45) should be DENIED as moot; and it is further
RECOMMENDED, that Hakeem's cross-motion for summary judgment (Dkt. No. 86) should be DENIED as moot; and it is further
RECOMMENDED, that this case be referred to this court for the issuance of a new scheduling order; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.
NOTICE:
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).