Clayton v. DOCCS, et al

Opinion

S&S mex ta ay A = Gxerrsio3 SS hes KJ Office of the New York State Letitia James Attorney General Attorney General

VIA ECF August 6, 2026 Hon. Dale E. Ho United States District Judge Thurgood Marshall United States District Courthouse Southern District of New York 40 Foley Square New York, NY 10007 Re: Clayton v. DOCCS, et al, 25 Civ. 9344 (DEH) Dear Judge Ho: This office currently represents Defendant New York State Department of Corrections and Community Supervision (“DOCCS”). We hope to soon have finalized representation of all the remaining defendants shortly, other than defendants Delgiorno and Carpenter for whom a final decision on representation by this office is expected soon. Accordingly, we respectfully request a short extension until August 28, 2026 to respond to the Amended Complaint (“AC”) for the defendants that this office expects to represent.! We expect the response to the AC to consist of a fully dispositive motion to dismiss as to several defendants and a partial motion to dismiss as to others.” We also request that the deadline to respond be extended until September 10 for defendants Delgiorno and Carpenter, who will likely need to retain outside representation if my office cannot represent them. This 1s the second request by defendants to adjourn the deadline to respond to the AC, the previous request having been granted by the Court with the deadline extended from July 10 to August 10. ' Defendants DOCCS, Martuscello, Rivers, Russo, Charles and Mathhew Gublo, Cunningham, Palmer, Washington, Cyrezak, Imbasciani, McCormick, Schiro, Davis, Greene, Gonzalez, Brooks, and Capra. Defendant Foster has not yet been served because he was on leave and we are working with Plaintiff's counsel to effect service. The requested extension would allow time for service on him to be completed. ? Defendants will not seek a stay of discovery while the motion is pending but do request a stay of the deadline to answer until after the motion to dismiss is decided as per F.R.C.P. 12(a)(4)(A) and applicable S.D.N.Y. caselaw. See, e.g., Ballast v. Workforce7Inc., No. 20 Civ. 3812, 2024 WL 307966, at * 11 (S.D.N.Y. Jan. 26, 2024) citing Talarico v. Port Auth. Of N.Y. and N.J., 367 F. Supp. 3d 161, 165 n. 1 (S.D.N.Y. 2019) and Lombardo v. Dr. Seuss Enterprises, No. 16 Civ. 9974, 2017 WL 1378413, at * 3 (S.D.N.Y. April 7, 2017).

Litigation Bureau | 28 Liberty Street, New York NY 10005

Hon. Dale E. Ho August 6, 2026 Page 2 of 2

I also write on behalf of Plaintiff’s counsel, Ms. Silverman, to request an adjournment of the upcoming August 26, 2026 conference as Ms. Silverman is presently scheduled for an all-day mediation on that date. Ms. Silverman has advised me that her schedule for in-person appearances in September is difficult, with availability the morning of September 10 and general availability on September 15, 16, and 23. Ms. Silverman is flexible on other dates if the conference is telephonic. I presently have general availability in September for in-person and telephonic conferences. Ms. Silverman has reviewed the content of this letter and consented to these requests. We thank the Court for its consideration. Respectfully submitted,

Jeb Harben Assistant Attorney General (212) 416-6185 jeb.harben@ag.ny.gov ce: Counsel of Record (via ECF)

The Court is in receipt of this letter. The request is GRANTED IN PART. To reduce the risk of confusion, the time to respond to the Complaint for all defendants is extended to September 10, 2026. Further, the conference scheduled for August 26, 2026 is ADJOURNED to September 23, 2026 at 1:30 P.M. in Courtroom 905 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York. The Clerk of of Court is respectfully directed to terminate ECF No. 61. SO ORDERED. at Le Dated: August 7, 2026 Dale E. Ho New York, New York United States District Judge