Vidal v. The State of New York

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

DATE FILED: 3/19/2021

JOSEPH VIDAL,

Plaintiff,

. 18-cv-6184 (NSR)

“against- OPINION & ORDER

DONALD E. VENETTOZZI et al,

Defendants.

NELSON S. ROMAN, United States District Judge

Plaintiff Joseph Vidal (‘Plaintiff’) commenced this action on or about July 6, 2018. On

January 7, 2019, Plaintiff filed an Amended Complaint against Defendants Donald E. Venettozzi

(“Venettozzi”), Eric Gutwein (“Gutwein”), Wayne Carrol (“Carrol”), and Bryan P. Anspach

(“Anspach”) (collectively, “Defendants”), alleging violations of Section 1983 of the Civil Rights

Act (“Section 1983”). (ECF No. 11.)

On June 25, 2020, Defendants filed a motion to dismiss the Amended Complaint. (ECF

No.38.) On September 10, 2020, Plaintiff submitted opposition to Defendants’ motion. (ECF No.

47.) For the following reasons, Defendants’ motion is GRANTED in part and DENIED in part.

BACKGROUND

The following facts are taken from Plaintiff's Amended Complaint, dated January 7,

2019. (ECF No. 11.)

In March 2015, Plaintiff was incarcerated at Green Haven Correctional Facility (“Green

Haven”). (ECF No. 11 at 4.) Defendants served various roles in the disciplinary process at Green

Haven. Venettozzi is the Director of Special Housing Unit (“SHU”), Inmate Disciplinary

Program and is responsible for the operation of the disciplinary process, including review of

guilty disposition of administrative proceedings and training hearing officers. (Id.) Gutwein is a

Commissioner Hearing Officer (“CHO”). (Id. at 5.) Carrol is a Recreation Program Leader and

was also designated by Lynn Lilly, First Deputy Superintendent, as a Disciplinary Employee

Assistant. (Id. at 5-6.) Anspach is a Correction Sergeant at Green Haven and the officer-in-

charge at the Facility’s Disciplinary Office and performed duties included locating witnesses and

obtaining requested information and documents. (Id. at 6.)

On March 6, 2015, Plaintiff experienced difficulties retaining possession of certain legal

materials while being transferred from E-block to A-block at Green Haven. (Id. at 7.) During the

transfer process, CO Wesley and Co Lampon refused to permit Plaintiff to bring more than four

bags of property. (Id. at 8-9.) Plaintiff indicated that he possessed extra bags of legal material

and that he had written the superintendent to obtain permission to possess these materials. (Id.)

Plaintiff also requested that CO Lampon contact the security office or call a supervisor because

Department of Corrections and Community Supervision (“DOCCS”) directives contain

exceptions that permit possession of additional legal materials. (Id.)

Plaintiff’s request was not well received. CO Lampon exited the control gate and advised

him in a condescending tone that, “I am not calling no one, put whatever excess property you

have in this bag.” (Id. at 9.) CO Lampon returned to the control gate and directed the clerk and

porters to either lock in Plaintiff or take him up to the second deck. (Id. at 9.) CO Wesley then

called to CO Tagliaferri, who was working on the second and third decks and informed her that

Plaintiff was going up. (Id. at 10.) CO Lampon exited the control gate and directed Plaintiff to

take up any bag he felt he didn’t have to reduce in order to comply with property limits. (Id. at

10.) Plaintiff grabbed a red commissary bag filled with legal materials and exited the company

past CO Wesley, CO Lampon, CO Cocuzza, and CO Chase who were in front of the control

gate. (Id. at 10.) Plaintiff ascended the stairs and handed his bag to Espinal, another incarcerated

individual. (Id. at 10.) CO Tagliaferri was at the second deck control gate. (Id. at 10.)

After Plaintiff descended the stairs, and returned to the control gate, CO Lampon “got

physical” with Plaintiff and placed him in hand mechanical restraints. (Id. at 10-11.) A response

team was summoned and, when Sergeant James Carter inquired what happened, CO Wesley

stated “he didn’t want to comply with the property limit.” (Id. at 11.) CO Lampon and CO

Wesley then accused Plaintiff of assaulting them. (Id. at 11.)

On March 8, 2015, Plaintiff received two inmate misbehavior reports (“IMR”s) relating

to the aforementioned events of March 6, 2015. The first IMR, authored by CO Lampon, charged

Plaintiff with violating Departmental Rules 100.11-Assault on Staff, 104.11-Violent Conduct,

106.10-Refusal of a Direct Order, and 104.13-Creating a Disturbance. The second IMR, authored

by CO Wesley, charged Plaintiff with violating Department Rules 100.11- Assault on Staff,

104.11- Violent Conduct, and 104.13- Creating a Disturbance. (Id. at 11-12.) CO Wesley and CO

endorsed each other’s reports. (Id. at 12.)

On March 9, 2015, Defendant Carrol was notified that he was selected to assist Plaintiff

with the charges filed against him. (Id. at 12.) Carrol met with Plaintiff and Plaintiff provided a

written request for assistance. (Id. at 12.) Plaintiff asked Carrol to interview three other

additional incarcerated individuals—Candelaria, Margano, and Dunlap—to determine if they

would testify on Plaintiff’s behalf. (Id. at 12.) Plaintiff also asked Carrol to obtain a copy of: (1)

the A-block log book, (2) the name of the female officer working the second deck, (3) the A-

block 1st officer’s job description, and (4) DOCCS directive 4913. (Id. at 13.)

On March 11, 2015, Defendant Carrol informed Plaintiff that five incarcerated

individuals agreed to testify on his behalf. (Id. at 13.) Plaintiff inquired as to Espinal’s written

statement and Carrol responded “he is going to be your witness.” (Id. at 13.) Plaintiff asked

Carrol whether he had successfully obtained the logbook, job description, and name of the

female officer. (Id. at 13-14.) Carrol told him “you can’t get them and you could call the officer

at the hearing.” (Id. at 14.) Carrol provided an assistant form and stated “I know a lot of things

are going on in A-block, this is all the disciplinary office allowed me to do, I can’t do any more.”

(Id. at 14.)

Plaintiff alleges that Anspach interfered with Defendant Carrol’s role as Plainitff’s

Employee Assistant and that Anspach refused to assist with requesting departmental and facility

records or arrange for documents to be made available at the hearing. (Id. at 14.) Plaintiff needed

these records to discredit both CO Lampon and CO Wesley. (Id. at 14.)

On March 12, 2015, Defendant Gutwein convened a combined Tier III Superintendent

Disciplinary Hearing on the charges against Plaintiff. (Id. at 15.) During the hearing, Plaintiff

requested that Gutwein obtain a copy of the A-block job description, a copy of employee

manual, and a copy of Departmental Direction 4913 governing property limits. (Id. at 15.)

Plaintiff also requested that several witnesses be made available to testify including all witnesses

who had agreed to testify on his behalf, another incarcerated individual named David Woodrow,

and the female officer who was assigned to work the second and third decks. (Id.) The hearing

was adjourned so that the witnesses and relevant documents could be located. (Id. at 15-16.)

Thereafter, Gutwein reconvened the hearing and summoned two incarcerated individuals,

Dulap and Margano, to the facility disciplinary office, where their testimony was given via

telephone. (Id. at 16.) Gutwein also summoned officers Lampon, Wesley, Cocuzza, and Chase,

as well as Sergeant Carter. (Id. at 16.)

On May 11, 2015, Gutwein reconvened the hearing and denied Plaintiff’s request to

produce incarcerated individuals Candeliaria and Woodrow and the unidentified female officer

as witnesses. (Id. at 17.) Gutwein made no effort to personally interview Candelaria, denied

Plaintiff’s document requests, indicated that the requested documents were not relevant to the

disciplinary hearing. (Id. at 17.) After the hearing, Gutwein found Plaintiff guilty of the charges

in the two IMRs, imposed 270 days of restricted confinement in a SHU, rescinded his

privileges—including his possession of certain packages, commissary, and access to the inmate

telephone—, and recommended a loss of 9 months’ Good Time Allowance. (Id. at 17.)

On June 9, 2015, Plaintiff was transferred hundreds of miles away to a facility in upstate

New York. (Id. at 18.) At the upstate facility, Plaintiff was deprived of free movement, physical

access to the general population recreation—e.g., daily showers, use of the telephone, use of

television, social activities, exercise equipment—, regular visits without restrictions, law library

access, program and/or job assignments, prison wages, commissary purchases, food packages,

and prescribed and over-the-counter medications. (Id. at 18.) Though unclear, Plaintiff also

appears to allege that DOCCS delayed or prevented his access to medical treatment and

diagnostic procedures including physical therapy and recommended MRI examinations. (Id. at

18.)

On July 1, 2015, Plaintiff appealed Gutwein’s decision to Venettozzi. (Id. at 19.)

Plaintiff’s administrative appeal was denied. (Id. at 19.) On or about October 1, 2015, Plaintiff

commenced an Article 78 proceeding in New York Supreme Court, Albany County, to review

the May 22, 2016 and July 7, 2015 determinations. (Id. at 19.) Then, on March 2, 2016,

Plaintiff’s case was transferred to The Appellate Division, Third Judicial Department. (Id. at 19.)

By memorandum and judgment dated April 20, 2017, that court unanimously found that the

Hearing Officer erred by denying Plaintiff’s request to call a witness and annulled the May 11,

2015 determination. (Id. at 19-20.)

STANDARD OF LAW

I. Judgment on the Pleadings

Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but early

enough not to delay trial—a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c).

“To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to ‘state a

claim to relief that is plausible on its face.’” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir.2012)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007)). The standard for analyzing a motion for judgment on the pleadings under Rule 12(c) is

identical to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6).

Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); see also Fed.R.Civ.P. 12(b)(6).

In ruling on a motion to dismiss, a “court may consider the facts as asserted within the four

corners of the complaint together with the documents attached to the complaint as exhibits, and

any documents incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC v.

Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir.2010) (internal quotation and citation omitted).

Courts may also consider “matters of which judicial notice may be taken” and “documents either

in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.”

Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993).

On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the

complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). When there are well-pleaded factual allegations in the

complaint, “a court should assume their veracity and then determine whether they plausibly give

rise to an entitlement to relief.” Id. at 679. “Although for the purpose of a motion to dismiss [a

court] must take all of the factual allegations in the complaint as true, [it is] ‘not bound to accept

as true a legal conclusion couched as a factual allegation.’” Id. (quoting Twombly, 550 U.S. at

555). It is not necessary for the complaint to assert “detailed factual allegations,” but must allege

“more than labels and conclusions.” Twombly, 550 U.S at 555. The facts in the complaint “must

be enough to raise a right to relief above the speculative level on the assumption that all the

allegations in the complaint are true.” Id.

“Pro se complaints are held to less stringent standards than those drafted by lawyers, even

following Twombly and Iqbal.” Thomas v. Westchester, No. 12–CV–6718 (CS), 2013 WL

3357171, at *2 (S.D.N.Y. July 3, 2013). The court should read pro se complaints “‘to raise the

strongest arguments that they suggest,’” Kevilly v. New York, 410 F. App’x 371, 374 (2d Cir.

2010) (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)); see also

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“even after Twombly, though, we remain

obligated to construe a pro se complaint liberally”). “However, even pro se plaintiffs asserting

civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual

allegations sufficient to raise a right to relief above the speculative level.” Jackson v. N.Y.S.

Dep’t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555)

(internal quotations omitted). Dismissal is justified, therefore, where “the complaint lacks an

allegation regarding an element necessary to obtain relief,” and therefore, the “duty to liberally

construe a plaintiff’s complaint [is not] the equivalent of a duty to re-write it.” Geldzahler v. N.Y.

Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and alterations

omitted).

II. Incarcerated Individual’s Due Process Protections

“The due process protections afforded a prison inmate do not equate to ‘the full panoply

of rights’ due to a defendant in a criminal prosecution.’” Sira v. Morton, 380 F.3d 57, 69 (2d Cir.

2004). For example, there is no right to counsel or to confrontation. Id. Nor is there a right to a

speedy hearing. See Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (“[T]he violation of 7

N.Y.C.R.R. § 251–5.1(a) [regarding the timing of a disciplinary hearing] alone would not be

enough generally to establish a constitutional claim.”); see also Barnes v. Henderson, 628 F.

Supp. 2d 407, 411 (W.D.N.Y. 2009) (“Due process for an inmate disciplinary hearing does not

encompass a right to a speedy hearing.”). Prison inmates nevertheless are entitled to certain

procedural protections, including (1) advance written notice of charges against him, (2) a

“reasonable opportunity to call witnesses and present documentary evidence,” (3) a fair and

impartial officer, and (4) a written statement of the disposition. Id.

There are, of course, certain limitations to these procedural protections. For example, the

right to call witnesses must be balanced “against the needs of the prison.” Colon v. Annucci, 344

F. Supp. 3d 612, 634 (S.D.N.Y. 2018). Specifically, officers may deny a request to call a witness

“on the basis of irrelevance[,] lack of necessity, or ‘futility,’” which includes “situations in which

‘witness will not testify if called.’” Id. (citing Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d

Cir. 1991)).

DISCUSSION

On June 25, 2020, Defendants file a motion for judgment on the pleadings. (ECF No. 39.)

On September 10, 2020, Plaintiff submitted his opposition to Defendants’ motion. (ECF No. 47.)

I. Claims Against Defendant Venettozzi

“In actions under 42 U.S.C. § 1983, good faith or qualified immunity is an affirmative

defense which must be pleaded by the defendant officials.” Williams v. Smith, 781 F.2d 319, 322

(2d Cir. 1986) (citing Harlow v. Fitzgerald, 457 U.S. 800, 815, (1982); Sec. & Law Enforcement

Emp. Dist. C. 82 v. Carey, 737 F.2d 187, 210 (2d Cir. 1984)). Under the doctrine of qualified

immunity, “government officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818, (1982); Johnson v. Perry, 859 F.3d 156, 169 (2d Cir. 2017). “The qualified

immunity standard gives ample room for mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law,” McClenton v. Menifee, 2006 WL

2474872, at *14 (S.D.N.Y. Aug. 22, 2006) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)

(per curiam) (internal citation and quotation marks omitted)). Qualified immunity protects

defendants not just from liability, but also from having to litigate at all. Saucier v. Katz, 533 U.S.

194, 200 (2001).

There is a two-step analysis in determining whether an official is entitled to qualified

immunity. See Saucier, 533 U.S. at 201-02; Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir.

2002). “In resolving the question of qualified immunity, a court must decide whether the alleged

conduct was a violation of a constitutional right and whether the right at issue was ‘clearly

established’ at the time of defendant’s alleged misconduct,” Gonzalez v. City of Schenectady,

728 F.3d 149, 164 n. 2 (2d Cir. 2013) (citing Saucier, 533 U.S. at 201); see also Hope v. Pelzer,

536 U.S. 730, 739, (2002) (contours of constitutional right violated must be sufficiently clear).

Plaintiff argues that Venettozzi’s failure to reverse Gutwein’s decision is a violation of

due process under the Fourteenth Amendment. It is unclear “whether an appeal officer may be

held liable for failing to reverse the outcome of an allegedly unconstitutional disciplinary

hearing.” Lebron v. Mrzyglod, 2017 WL 365493, at *8 (S.D.N.Y. Jan. 24, 2017); Constant v.

Prack, 2019 WL 3287818, at *4 (S.D.N.Y. July 19, 2019) (citing Constant v. Annucci, 2018 WL

1684411, at *4 (S.D.N.Y. April 5, 2018)). The Second Circuit has suggested on at least two

occasions that an appeal officer may be liable for failing to correct procedural due process errors

in the underlying hearing. See Wright v. Smith, 21 F.3d 496, 502 (2d Cir. 1994) (finding that

Defendant—who reviewed and affirmed a hearing where Plaintiff was denied notice of the

hearing and its outcome, an impartial hearing officer, the right to be present, and the right to

respond to the evidence against him—was a supervisory official who after learning of the

violation through a report or appeal failed to remedy a wrong and, therefore could be held

liable); Williams v. Smith, 781 F.2d 319, 325 (2d Cir. 1986) (finding an issue of material fact

concerning superintendent's personal involvement in violating inmate's civil rights by affirming

result of disciplinary hearing at which inmate was purportedly deprived of due process by not

being allowed to call witnesses).

District Courts reviewing those cases, however, “have determined that the circumstances

were factually unique enough to leave open the question of whether an appeal officer may be

held liable merely for the failure to reverse the outcome of an allegedly unconstitutional

hearing.” Lebron, 2017 WL 365493, at *8. Therefore, even if Plaintiff were to prevail in showing

Venettozzi’s actions constituted a constitutional violation, Venettozzi would be entitled to

qualified immunity because the right to an error-proof appeal officer is not clearly established at

the time of Venettozzi’s appeal decision. As such, Plaintiff’s claims against Venettozii are

dismissed without prejudice.

II. Claims Against Defendant Gutwein

Defendants argues that the claims against Gutwein should be dismissed because

“disciplinary hearing officers have the discretion to deny witnesses [for reasons including]

irrelevance, lack of necessity, and other hazards particular to each case.” (ECF No. 39 at 11.)

Defendants argue that Gutwein provided reasons for the denial of certain witnesses and

documents, including a determination that the witnesses refused to testify or that their testimony

was irrelevant. However, Plaintiff incorporates into his Amended Complaint by reference, a

memorandum and judgment of the Appellate Division, Third Department, finding that Gutwein

improperly denied the relevant testimony of at least one eyewitness as “irrelevant.” Therefore,

although hearing officers have the discretion to deny irrelevant witness testimony, the Court

finds that Plaintiff has adequately plead that the witnesses and documents withheld by Gutwein

may have, in fact, been relevant. As such, the Court will not dismiss the claims against

Defendant Gutwein.

III. Claims Against Defendant Carrol

Prison authorities have a constitutional obligation to provide assistance to an inmate in

marshaling evidence and presenting a defense when he is faced with disciplinary charges. Eng v.

Coughlin, 858 F.2d 889, 897 (2d Cir. 1988). Nonetheless, Defendants argue that the claims

against Defendant Carrol should be dismissed because analogous instances of assistance have

been deemed adequate. For example, the court in Brooks v. Piecuch explained that “[c]ourts have

found assistance to be adequate when a replacement assistant interviewed witnesses but failed to

tell the inmate … or when the inmate alleged lack of assistance in finding documents, courts

found that the documents did not exist.” 245 F.Supp.3d 431 (2017). That case is distinguishable.

Unlike in Brooks, Plaintiff alleges that Gutwein failed to ascertain the identify of a female officer

witness, failed to obtain the written testimony of Espinal, and failed to obtain documentation, all

of which Defendant alleges were relevant to his defense. Therefore, the Court will not dismiss

the claims against Defendant Carrol.

IV. Claims Against Defendant Anspach

The only allegations Plaintiff makes against Defendant Anspach are that he “interfered

with Defendant Carrol’s role of [Plaintiff’s] Employee Assistant” and “would refuse to assist

with requesting departmental and facility records or arrange for documents to be made available

at the hearing.” (Id. at 14.) Plaintiff’s allegations against Anspach are conclusory and

unsupported by factual allegations of the actual circumstances surrounding Anspach’s alleged

interference and refusal to assist. As such, the Court dismisses Plaintiff’s claims against Anspach

without prejudice to amend said claim.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED as to Defendants

Vennetozzi and Anspach and DENIED as to Defendants Carrol and Gutwein. As the claims are

dismissed without prejudice, Plaintiff is granted leave to file a Second Amended Complaint on or

before April 19, 2021. Should Plaintiff fail to timely file a Second Amended Complaint or fail to

seek an extension, the Amended Complaint shall be deemed the operative complaint and the

parties are directed to complete a Case Management Plan and Scheduling Order (blank form

attached hereto). Said Scheduling Order shall be submitted to Chambers by May 17, 2021. After

review and approval of the Scheduling Order, the Court will issue an Order of Reference to

Magistrate Judge Paul E. Davison. The parties are directed to contact Judge Davison within

seven (7) business days of the date of the Order of Reference to schedule a conference. In the

event Plaintiff files a Second Amended Complaint, Defendants shall have twenty-one days to file

responsive pleading.

The Clerk of the Court is directed to terminate the motion at ECF No. 38, to terminate

Defendants Vennetozzi and Anspach, and to mail a copy of this opinion to pro se Plaintiff at

the address on ECF and to show service on the docket.

Dated: March 19, 2021 SO ORDERED:

White Plains, New York

NELSON S. ROMAN

United States District Judge

13

UNITED STATES DISTRICT COURT Rev. Jan. 2012

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------x

CIVIL CASE DISCOVERY PLAN

Plaintiff(s), AND SCHEDULING ORDER

-against -

Defendant(s). CV (NSR)

-------------------------------------------------------------x

This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with

counsel, pursuant to Fed. R. Civ. P. 16 and 26(f):

1. All parties [consent] [do not consent] to conducting all further proceedings before

a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c).

The parties are free to withhold consent without adverse substantive consequences.

(If all parties consent, the remaining paragraphs of this form need not be

completed.)

2. This case [is] [is not] to be tried to a jury.

3. Joinder of additional parties must be accomplished by

_______________________.

4. Amended pleadings may be filed until _____________________.

5. Interrogatories shall be served no later than ___________________, and responses

thereto shall be served within thirty (30) days thereafter. The provisions of Local

Civil Rule 33.3 [shall] [shall not] apply to this case.

6. First request for production of documents, if any, shall be served no later than

____________________.

7. Non-expert depositions shall be completed by ____________________________.

a. Unless counsel agree otherwise or the Court so orders, depositions shall not

be held until all parties have responded to any first requests for production

of documents.

b. Depositions shall proceed concurrently.

c. Whenever possible, unless counsel agree otherwise or the Court so orders,

non-party depositions shall follow party depositions.

8. Any further interrogatories, including expert interrogatories, shall be served no

later than _______________________.

9. Requests to Admit, if any, shall be served no later than

______________________.

10. Expert reports shall be served no later than ______________________.

11. Rebuttal expert reports shall be served no later than ______________________.

12. Expert depositions shall be completed by ______________________.

13. Additional provisions agreed upon by counsel are attached hereto and made a part

hereof.

14. ALL DISCOVERY SHALL BE COMPLETED BY ______________________.

15. Any motions shall be filed in accordance with the Court’s Individual Practices.

16. This Civil Case Discovery Plan and Scheduling Order may not be changed without

leave of Court (or the assigned Magistrate Judge acting under a specific order of

reference).

17. The Magistrate Judge assigned to this case is the Hon. .

18. If, after entry of this Order, the parties consent to trial before a Magistrate Judge,

the Magistrate Judge will schedule a date certain for trial and will, if necessary,

amend this Order consistent therewith.

19. The next case management conference is scheduled for _____________________,

at ____________. (The Court will set this date at the initial conference.)

SO ORDERED.

Dated: White Plains, New York

_______________________

Nelson S. Román, U.S. District Judge