Dixon v. Blackensee

Opinion

EES IEIES SER Saas NG Goes = U.S. Department of Justice ey United States Attorney Southern District of New York Noro Ne ork gor TRETAPBIRCtion □□□□□□□ PONS May 27,2020 gfe By ECF Nelson S. Roman, U.S.D.J. The Honorable Nelson S. Roman Dated: WW □□ 2.96 United States District Judge White Plains. New York 1060t Southern District of New York Clerk of the Court ’ requested to 300 Quarropas Strest terminate the motion (doc. 61) White Plains, NY 10601 as. Re: — Male Dixon, aka James King v. Blackensee, 17 Civ. 7359 (NSR) Dear Judge Roman: This Office represents defendant Barbara Von Blanckensee, Warden of the Federal Correctional Institution in Otisville, New York, (the “government”) in this action brought by incarcerated plaintiff Male Dixon, also known as James King. Lwrite respectfully to request a stay of all discovery, including any pending deadlines, in this action until the government’s interlooutory appeat ts Tesolved. Plaintiff's counsel consents to this request oe Ee EUS On June 11, 2019, this Court granted the government’s motion to dismiss in part, but denied it with respect to plaintiff's Fifth and First Amendment claims against Warden Blanckensee in her personal capacity under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). See Opinion and Order, Dkt. No. 35. On March 26, 2020, the Court denied in part Warden Blanckensee’s motion for reconsideration of the Court’s decision on her motion to dismiss. See Opinion and Order, Dkt. No. 55. On May 22, 2020, the government appealed from the Court’s June 11, 2019, and March 26, 2020, decisions. See Dkt. No. 60. In light of the government’s appeal, discovery should be stayed, in line with the purposes of the qualified immunity doctrine. See Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“Until [the] threshold [qualified] immunity question is resolved, discovery should not be allowed.”). In addition, because the issues raised by the Court’s decisions on appeal concern the entirety of plaintiff's remaining claim, this Court lacks jurisdiction over plaintiff's remaining claim until the mandate of the United States Court of Appeals for the Second Circuit issues. See Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago v. Bank of New York Mellon, 297 F.R.D. 218, 220-21 (S.D.N.Y. 2013) (“[A]n interlocutory appeal, unless frivolous, generally divests the district court of jurisdiction respecting the issues raised and decided in the order on appeal.” (quoting Garcia v. Bloomberg, No. 11 Civ. 6957 (JSR), 2012 WL 3127173, at *1 (S.D.N.Y. July 27, 2012))). I thank the Court for its consideration of this submission.

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Respectfully submitted, GEOFFREY S. BERMAN United States Attorney By: —/s/ Steven J. Kochevar Steven J. Kochevar Assistant United States Attorney 86 Chambers Street, 3" Floor New York, NY 10007 Telephone: (212) 637-2715 Fax: (212) 637-2717 Email: steven.kochevar@usdoj.gov cc (by ECF): Counsel of Record