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Blog – §1983 Case Plan explained by Criminal Defense and Civil Rights attorney

Posted By Galluzzo and Johnson LLP || 1-Apr-2014

Blog – § 1983 Case Plan:

Given the ever increasing number of claims being filed for excessive force, false arrest, and/or malicious prosecution against the City and/or the New York City Police Department ('NYPD'), the United States District Court of the Southern District of New York ('SDNY')(serving Manhattan, White Plains and Middletown, NY) came up with a case plan to ensure the timely hearing of such cases. This is known as the '§ 1983 Plan'. This Plan intends to facilitate the speedy disposition of such cases, however, it only applies to certain types of cases (those which are less complicated, and could be resolved quickly by following this Plan).

Service of the Complaint:

Under the § 1983 Plan, the complaint must be served with a signed § 160.50 release, which allows for the 'un-sealing' of arrest records. The plaintiff must also serve with the complaint and § 160.50 release all medical and psychological records pertaining to the injuries for which the plaintiff seeks damages. Plaintiffs with pre-existing medical conditions that reasonably appear to be connected with the condition for which damages are sought, the plaintiff must also serve medical releases for records of treatment of that pre-existing condition. Should a plaintiff fail to serve a § 160.50 release at the time of serving the complaint, counsel for the City must immediately send a letter to the plaintiff's attorney requesting the aforementioned release, and attach a copy of the § 1983 Plan.

Time to Answer:

If the plaintiff serves the § 160.50 release at the same time as the complaint, the defendant has 80 days from the date of service to provide an answer to the complaint. Any defendant who is served subsequently will have the better of (i) 60 days or (ii) the date on which the first served defendant's answer is due, to answer the complaint.

If the § 160.50 release was served later than the complaint, each defendant will have the larger of (i) 60 days from the date of service of the § 160.50 release on the City or (ii) 60 days after that particular defendant is served, to answer the complaint.

The Court is to stay the § 1983 Plan deadlines if any of the defendants move to dismiss the entire complaint, in lieu of filing an answer, unless the Court orders differently.

Conference and Initial Disclosures:

As per Federal Rules of Civil Procedure Rule 26(f), the parties should meet and conference within 14 days of the defendant filing their answer to the complaint. As parties of this conference, the parties should discuss whether or not to ask the court (i) to send the case to a magistrate judge for settlement purposes or (ii) to excuse the case from the § 1983 Plan. Applications of this nature must be submitted to the judge presiding over the case no more than 21 days after the first defendant files their answer. If no such application is made, the case will be automatically continue under the § 1983 Plan, and will immediately be referred to a Southern District Mediation Panel mediator, which has experience in this area.

Limited Discovery:

No more than 28 days after the first defendant files their answer, the parties must follow the following discovery process:

The City must serve on the plaintiff:

(i) Any items listed in Exhibit C (unless protected by applicable privileges)(see link at the bottom of this post) that did not make up the City's initial disclosures; any documents received by the District Attorney's ('DA's') office; any documents acquired from the court file.

(ii) Any CCRD and IAB reports and/or records pertaining to the incident that is the foundation of the complaint. If the incident is still under investigation (including investigation by the NYPD or disciplinary proceedings), discovery will be suspended. Investigative records must be produced by the City within 30 days of the conclusion of the aforementioned investigation. Such a suspension will not include documents which are related to a concluded investigation.

(iii) CCRD complaints for each defendants which are akin to those alleged in the present complaint. If excessive force is alleged, it must be disclosed whether or not the officer has been or is under 'force monitoring'.

(iv) Records obtained as a result of medical releases, within 7 days of having received them.

The plaintiff must serve on the City:

(i) Any document listed in Exhibit C (see the link at the bottom of this post), any document derived from either the DA's office or from the court file.

(ii) Medical records relevant to any treatment the plaintiff is receiving pursuant to the abovementioned medical release.

All other discovery is stayed, and unless the court decides otherwise, this stay will terminate at the end of the mediation/settlement conference.

Amended Pleadings:

Further defendants may be added to the complaint without requiring leave of the court within six weeks of the first defendant filing an answer. Such an amendment does not affect the deadlines set out in this plan.

Settlement Demand and Offer:

Within six weeks of filing of the above-mentioned answer, the plaintiff must garnish a settlement demand in writing on the City, which must accordingly be responded to within 14 days. This should result in settlement negotiations taking place.

Mediation or Settlement Conference:

Unless the case has been referred by the court to a Magistrate to facilitate a settlement conference, a mediator will designate a mediator within 14 days of the first defendant filing an answer. Once assigned, the mediator shall organise with counsel for both parties a conference, to take place no more than 14 weeks after the first defendant files an answer. Unless a stipulation of dismissal is provided to the Clerk, each of the parties must take part in either a mediation session or a settlement conference.

Failure to Comply with these Requirements:

Once a party becomes aware of a breach of these regulations by the other side, they must inform the presiding judge in writing of the nature of the breach, and request that the judge grant relief.

Request for Initial Pre-Trial Conference:

Unless already held or scheduled by the court, if no settlement can be reached through mediation or settlement conference, the parties are to request the court to calendar an initial pre-trial conference.

Protective Order:

In all cases, the relevant protective order (see the link at the bottom of this post) shall be assumed to be in place.

Preservation:

These regulations do not exclude any party from their responsibility to ensure documents are preserved, and to issue instructions to this effect.

Credit: http://www.nysd.uscourts.gov/rules/1983%20Revised%20Plan%20and%20Exhibits.11.22.2013.pdf – contains the Plan itself, as well as all aforementioned exhibits.

http://www.nysd.uscourts.gov/rules/Section%201983%20Plan%20White%20Paper.pdf

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