Jackson v. Pagan

UNITED STATES DISTRICT COURT es SOUTHERN DISTRICT OF NEW YORK \ \ | | WW □□□ eee neeeenneennenennX “AS □ THOMAS JACKSON, : Plaintiff, : : ORDER Vv. : : 20 CV 5176 (VB) SERGEANT E. PAGAN : YT) □ Defendant. cin ak d □□ \\ □□ nnnmmmmn senna armen an □□ Chamberee? Vincent 1. Brieecttt On November 17, 2020, the Court received a motion from plaintiff seeking the entry of default judgment against defendant. (Doc. #17).

Plaintiff's motion is DENIED with prejudice. Defendant was served with summons and notice of the complaint by mail on September 11, 2020. (See Doc. #10). As set forth on the notice of service, pursuant to a local standing order, defendant had 60 days from the date he or his agent mailed or delivered a completed acknowledgment of receipt of service to file and serve an answer or other responsive pleading. According to the Acknowledgment of Receipt of Summons and Complaint, (Doc. #10), defendant’s attorney acknowledged service on September 11, 2020.

Defendant therefore had until November 11, 2020 to file an answer or other responsive pleading.

Defendant timely filed an answer to the complaint on November 10, 2020. (Doc. #15).

Defendant also docketed proof of service on plaintiff by mail. (Doc. #15-1). Because the Court recognizes plaintiff may not have received a copy of defendant’s answer, the Court has attached a copy of the answer to this Order, which will be mailed to plaintiff at the address on the docket.

The Court certifies under 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 purpose of an appeal.

Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Chambers will mail a copy of this Order to plaintiff at the address on the docket.

The Clerk is instructed to terminate the motion (Doc. #17).

Dated: November 18, 2020 White Plains, NY SO ORDERED: Vincent L. Briccetti United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK eee ne emer cence □□□□□□□□□□□□□□□□□□□□□□□ K THOMAS JACKSON, : Plaintiff, : : 20-cv-5176(VB) - against - : : ANSWER SERGEANT E. PAGAN, suing individual and in : their official capacities, Defendants. : none ene □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ K Defendant Lieutenant, s/h/a Sergeant, Edgar Pagan (“Defendant”) hereby answers the Complaint, filed July 2, 2020 (the “Complaint”), by Plaintiff Thomas Jackson (‘Plaintiff’) as follows: 1. Defendant denies the allegation in Section I on Page 2 of the Complaint. !

2. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegation contained in Section Il on Page 2 of the Complaint.

3. Defendant admits the allegation in Section III on Page 2 of the Complaint that Plaintiff is a convicted and sentenced prisoner.

4, Defendant admits the allegation in Section IV on Page 3 of the Complaint to the extent that he was a Sergeant at Sing Sing Correctional Facility at times relevant to the allegations.

5, Section V on Pages 4-5 of the Complaint contains legal conclusions as to which no response is required. To the extent that Section V contains factual allegations to which a response is required, Defendant denies the allegations except admits that he issued Plaintiff an Inmate | Reference to the Complaint is made to pages as they appear on the ECF Docket (Dkt. No. 2), which are numbered in the order of the filing. Where possible, reference is also made to section headings identified on those pages.

Misbehavior Report on or about June 29, 2017 that charged Plaintiff with the following inmate rule violations: 100.10 (assault on inmate), 104.11 (violent conduct), 104.13 (creating a disturbance), 109.10 (out of place), and 113.10 (weapon).

6. Defendant denies that Plaintiff is entitled to any of the relief prayed for in Section VI on Page 5 of the Complaint and denies any wrongdoing.

7. Defendant denies any remaining allegations in the Complaint.

DEFENSES First Defense 8. Plaintiff has failed to state a claim or allege sufficient facts upon which relief can be granted.

Second Defense 9. The Eleventh Amendment bars Plaintiff's claims for damages against Defendant to the extent brought against him in his official capacities.

Third Defense 10. Defendant is entitled to qualified immunity for the claims asserted herein in that his conduct did not violate clearly established law or it was objectively reasonable for him to believe that his conduct did not violate clearly established law.

Fourth Defense 11. Plaintiff's claims may be barred in whole, or in part, by the doctrines of res judicata and collateral estoppel.

Fifth Defense 12. Plaintiffs claims are barred by Plaintiffs failure to exhaust his administrative remedies.

Sixth Defense 13. Plaintiff's conduct caused or contributed to, in whole or in part, his injuries and/or damages.

Seventh Defense 14. Any state law claims, to the extent raised herein, are barred by New York Correction Law § 24.

JURY DEMAND 15. Defendant demands a trial by jury.

CONCLUSION WHEREFORE, Defendant demands judgment dismissing the Complaint with prejudice, awarding him the costs of this action, and granting such other and further relief as the Court deems just and appropriate.

Dated: Westchester County, NY November 10, 2020 Respectfully submitted, LETITIA JAMES Attorney General State of New York Attorney for Defendant By:_/s/ Deanna L. Collins Deanna L. Collins Assistant Attorney General Liberty Street - 18th Floor New York, NY 10005 (212) 416-8906 [email protected] Copy mailed to: Thomas Jackson (pro se) DIN 12-A-3039 Upstate Facility P.O. Box 2000 Malone, NY 12953 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK penne ee nee □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ X THOMAS JACKSON, Plaintiff, : : 20-cv-5176 (VB) - against - : : DECLARATION OF SERVICE SERGEANT E. PAGAN, suing individually and in : their official capacities : Defendants. : DEANNA L. COLLINS, an attorney duly admitted to practice in New York State and this Court, pursuant to 28 U.S.C. § 1746, declares under penalty of perjury as follows: On November 10, 2020, I served Defendant’s Answer upon: Thomas Jackson DIN 12-A-3039 Upstate Correctional Facility P.O. Box 2000 Malone, NY 12953 by depositing a true and correct copy thereof, properly enclosed in a pre-paid wrapper, in a post-office box regularly maintained by the government of the United States, directed to the pro se plaintiff at the address within the State designated by him for that purpose.

/s Deanna L. Collins Deanna L. Collins Executed: Westchester County, NY November 10, 2020