Opinion
16-CV-01152 (AJN) (BCM)
10-25-2018
MATTHEW WHITTINGTON, Plaintiff, v. COMMISSIONER JOSEPH PONTE, et al., Defendants.
ORDER and REPORT AND RECOMMENDATION TO THE HONORABLE ALISON J. NATHAN
BARBARA MOSES, United States Magistrate Judge.
The Court has received and reviewed plaintiff's letter "RE: Immediate Injunctive Relief (Dkt. No. 121), which, although dated October 1, 2018, was electronically docketed on October 23, 2018, apparently because it was initially mailed without an identifying case number.
Order
Plaintiff states that he wishes to "do or attempt my interrogatories and requests of the defendants." The Court construes this portion of plaintiff's letter as an application for additional time to serve interrogatories and requests for production on defendants. The current deadline for the close of discovery is November 20, 2018. (See Dkt. No. 111.) Defendants are directed to respond to plaintiff's application on or before November 1, 2018, and shall include in their responding letter a summary of all discovery conducted by the parties thus far, including copies of all written discovery requests and responses served in this action; a list (by date and witness) of all depositions taken, and a summary (by date and quantity) of all document productions made. In addition, defendants shall update the Court as to the progress of the Use of Force investigations referenced in their letter dated September 7, 2018 (Dkt. No. 109) and advise the Court whether they have received and produced the underlying files.
It is so ordered.
Report and Recommendation
Plaintiff also seeks "immediate injunctive relief." Insofar as the Court can parse this portion of the letter, plaintiff seeks unspecified relief for harassment that he claims to be experiencing in his current confinement in the Attica Correctional Facility. Plaintiff asserts that the current harassment (consisting of excessive cell searches and urine tests, as well as miscalculation of his release date) "is a direct cause of this 1983 action," which I construe to mean that plaintiff believes he is being harassed in retaliation for pursuing this action.
Plaintiff does not provide any support for his conclusory assertion that he is being subjected to unlawful cell searches, improper urine testing, and improper release date calculations. Even more fundamentally, however, plaintiff's claims of harassment by unspecified personnel at Attica cannot be adjudicated in this action, which alleges that he was mistreated in various ways by correctional officers at several other correctional facilities on various dates from 2014 through 2016. The defendants in this action are the City of New York (which does not operate Attica) and 15 current or former correctional officers, none of whom, insofar as the record discloses, have interacted with plaintiff since he was transferred to Attica. This Court therefore concludes that it is without power to issue the requested injunctive relief, and respectfully recommends that plaintiff's application for such relief be DENIED.
The Clerk of Court is respectfully directed to mail a copy of this Order and Report and Recommendation to the plaintiff. Dated: New York, New York
October 25, 2018
/s/ _________
BARBARA MOSES
United States Magistrate Judge
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS
TO REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b) to this Report and Recommendation. Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Alison J. Nathan at 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Nathan. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).