Nelkenbaum v. State of New York

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------x YEHUDA NELKENBAUM, : Plaintiff, : : ORDER v. : : 19 CV 7953 (VB) : POLICE OFFICER JORDY; POLICE : OFFICER CHAVALIER; SERGEANT : SCHEVERING; ASSISTANT SULLIVAN : COUNTY DISTRICT ATTORNEY LEIGH : WELLINGTON; AND JOHN DOE # 1-10; : AND JANE DOE # 1- 10, : Defendants. : --------------------------------------------------------------x

On May 5, 2020, defendant Leigh Wellington moved to dismiss plaintiff’s amended complaint and mailed to plaintiff, who is proceeding pro se and in forma pauperis, copies of the motion and supporting documents. (Doc. #12). Plaintiff’s opposition to the motion was due May 22, 2020. See Fed. R. Civ. P. 6(d); Local Civil Rule 6.1(b). By June 3, 2020, plaintiff had not filed an opposition or sought an extension of time to do so. Accordingly, by Order dated June 3, 2020, the Court sua sponte extended to June 24, 2020, plaintiff’s time to oppose the motion to dismiss. (Doc. #15). The Court warned in bold and underlined typeface that if plaintiff failed to respond to the motion by June 24, 2020, the motion would be deemed fully submitted and unopposed. (Id.). By letter dated June 24, 2020, plaintiff requested an extension until July 22, 2020, to file his opposition. (Doc. #16). By Order dated June 26, 2020, the Court extended to July 22, 2020, plaintiff’s time to file an opposition to defendant Wellington’s motion to dismiss. (Doc. #17). By letter dated July 20, 2020, plaintiff requested a further extension until October 15, 2020, to file his opposition. (Doc. #20). Defendant Wellington opposed such a long extension. (Doc. #21). By Order dated July 24, 2020, the Court extended to September 30, 2020, plaintiff’s time to file an opposition to defendant’s motion to dismiss. (Doc. #23). The Court warned in bolded and underlined typeface that it would be unlikely to grant a further extension for plaintiff to file the opposition. (Id.). The Court also ordered plaintiff to pay the case filing fee to the Clerk of Court by August 7, 2020 because plaintiff had stated that he intended to withdraw his in forma pauperis application so that he could pay the filing fee and serve process on defendants. (Id.). By letter dated October 7, 2020, defendant Wellington requested the Court deem defendant’s motion to dismiss fully submitted, or if the Court granted plaintiff a further extension to file his opposition or if defendant belatedly received opposition papers, that the Court grant defendant an extension of time to file her reply. (Doc. #25). To date, plaintiff has not filed an opposition to the pending motion to dismiss or sought time for an extension in which to file an opposition. Nor has plaintiff paid the filing fee. Given that the Court has already twice extended plaintiff’s time to file an opposition, the Court declines to grant a further extension. The Court deems defendant’s motion to dismiss (Doc. #12) fully submitted and unopposed. The Court will decide the motion in due course. Plaintiff is reminded that the Court’s Orders are not mere suggestions. Chambers will mail a copy of this Order to plaintiff at the address on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purposes of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Dated: October 9, 2020 White Plains, NY SO ORDERED: Vl Neu

United States District Judge