USDC SDNY Ey ©) cK DOCUMENT MB gle By ELECTRONICALLY FILED am} ea! wy im AF DATE FILED: 4/15/2025 Ore <i & Office of the New York State Letitia James Attorney General Attorney General

April 11, 2025 VIA ECF Honorable Nelson S. Roman United States District Court Southern District of New York 300 Quarropas Street White Plains, NY 10601 Re: Terrance Greene v. Commissioner Daniel F. Martuscello, Superintendent Marlyn Kopp, and C.Q. K. Barnes, 24 Civ. 5228 (NSR) Dear Judge Roman: I am an Assistant Attorney General in the Office of Letitia James, Attorney General of the State of New York, and I have been assigned this case. Our office currently represents Marlyn Kopp (ECF #14), Daniel F. Martuscello, (ECF #17), and K. Barnes (ECF #19). By way of background, the Plaintiff originally filed a complaint in the action on July 9, 2024. (see ECF #1). Defendants requested leave to file a motion to dismiss the complaint, which was granted in an order on December 19, 2024. (see ECF #22). Pursuant to the Court’s briefing schedule the Defendants served Plaintiff with their motion to dismiss the complaint on February 3, 2025. In lieu of opposing the Defendants’ motion to dismiss, the Plaintiff submitted an amended complaint, including eight new John Doe (#1-8) defendants. (see ECF #36). Thereafter, the Defendants requested an extension of time to file motion to dismiss the amended complaint. (see ECF #33). The Court granted the extension of time for Defendants to file their second motion to dismiss Plaintiffs amended complaint. (see ECF #35). On March 26, 2025, consistent with the Court’s briefing schedule, the Defendants served the Plaintiff with their second motion to dismiss the complaint. On March 31, 2025, the Plaintiff submitted a letter to the Court requesting a Valentin Order be issued to identify the John Doe #1-8 prospective defendants. (see ECF #37). On April 10, 2025, the Court granted the Plaintiff's Valentin Order and instructed the Defendants to identify the John Doe #1-8 defendants within sixty (60) days. (see ECF #38). As a preliminary matter, the Defendants acknowledge their obligation and take no issue with the substance of the Court’s order pursuant to Valentin v. Dinkins,

(2d Cir. 1997), in identifying the John Doe defendants. However, the Defendants are seeking a stay of the time frame to comply with the Valentin order until after the Court renders a decision on the pending second motion to dismiss the amended complaint.

When deciding whether to grant a stay, courts consider five factors: (1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if delayed; (2) the private interests of and burden on the defendants; (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public interest. Diatek Licensing LLC v. Estrella Media, Inc., No. 22-cv-3508 (LJL),

, at * 2-3 (S.D.N.Y. Oct. 4, 2022) (quoting Kappel v. Comfort,

(S.D.N.Y. 1996)). First, the Plaintiff will not be prejudiced in this case because he has already been given leave to amend his complaint once in this action, when he filed an amended complaint in lieu of responding to the Defendants’ first motion to dismiss. See Thompson v United States, 795 F App'x 15, 17 [2d Cir 2019] (holding a pro se plaintiff should be granted leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated but leave to amend need not be granted where amendment would be futile). Furthermore, the Valentin order is a procedural device, it is intended to allow the plaintiff specificity in the identification of the individuals who are alleged to be tortfeasors in the complaint. However, there is no material difference – and thus no prejudice to the Plaintiff - between a claim against “John Doe #1” or “Ted Lasso1” because the substance of the complaint and not the entity’s names are considered vis-à-vis whether a constitutional claim is plead. Second, the Defendants would be burdened in this case because Plaintiff would continue to be afforded the opportunity to cherry pick the drafting of his complaint to eventually state constitutional violations without facing the consequence of the motion to dismiss. As noted, Plaintiff has had the benefit of reviewing two of Plaintiff’s motions to dismiss, and the opportunity to draft a second amended complaint, without the determination on the merits of previously filed motions prejudices the defendants. Moreover, time and resources would be wasted in attempting to locate and identify all eight John Does when in practicality claims may be dismissed as to some or all of them upon due consideration of the motion to dismiss. Third, judicial economy is best served by a decision being reached on Plaintiff’s amended complaint. Plaintiff has already been given leave to amend, by filing the amended complaint in lieu of an opposition to Defendants’ first motion to dismiss, and thus should the Court decide the second motion to dismiss on its mertis the Court may determine that some of Plaintiff’s claims are futile. See Nielsen v. Rabin,

(2d Cir. 2014) (quotation marks omitted). But "it is proper to deny leave to [amend] where there is no merit in the proposed amendments or amendment would be futile." Generally, a district court should first assess the merits of the claims made in the pleading. See Washington Westchester Cty. Dep't of Corr., No. 13 Civ. 5322 (KPF),

,

, at *6 (S.D.N.Y. Jan. 30, 2015) (considering a motion to dismiss prior to issuing a Valentin order). As such, a determination on the merits of the second motion to dismiss could make the Valentin order moot to some or all of the John Doe defendants, which would save Defendants time and cost in identifying those individuals, and streamline the remainder of the litigation for the Court. Fourth, the interest of the non-parties to this litigation, in this case the presently unidentified John Does #1-8 would best be served by determining which of them will remain in this action. Right now, a search would need to be conducted for eight potential defendants, all of whom would then need to be served, and request representation, prior to the consideration of the motion a third time. That would result in a several month delay, and may ultimately result in those individuals being dismissed from the action

1 For the purposes of the letter motion a random name was used in this example as a potential identified John Doe. anyway. As explained, the difference in the name used to identify the alleged perpetrators does not affect the decision on the merits of those claims. Fifth, ‘considerations of judicial economy are frequently viewed as relevant to the public interest [and] weigh against the investment of court resources that may prove to have been unnecessary.’ Readick v Avis Budget Group, Inc.,

, at *15 [SDNY Apr. 25, 2014].” Calliste v City of NY,

, at *6 [SDNY Oct. 22, 2024, No. 1:24-CV-04016-JHR]. For the reasons stated above the judicial economy in more quickly determining which Defendants, if any, would remain in the instant action, and streamlining the future litigation in the action would benefit staying the Valentin order until it is resolved. Defendants are requesting the Court continue with the briefing schedule as outlined in the February 25, 2025, order, and render a decision on Plaintiff's amended complaint on its merits. (see ECF #35). Furthermore, the Defendants are requesting the Court stay the time frame to respond to the Valentin order, until after the Court has ruled on the merits of the Defendants’ second motion to dismiss Plaintiff's amended complaint. Respectfully submitted, Kebut Feb Robert Feliu Assistant Attorney General (914) 422-8768 [email protected]

The Court is in receipt of Defendants’ request for a stay of the Vale ce: Terrance Greene, Plaintiff order pending resolution of the motion to dismiss. Defendants’ requ DIN: 24701692 . is GRANTED. The Clerk of Court is directed to terminate the moti Essex Correctional Facility a¢ ECF No. 39 and to mail a copy of this endorsement to pro se 354 Doremus Avenue Plaintiff at his address as it is listed on ECF and to show service on Newark, NJ, 07105 docket. Pro Se Dated: April 15, 2025 White Plains, NY SO ORDERED: Z | ee

NELSON 8, ROMAN United States District Judge

Pfly Ol LION UAL SOUBRERN DISTRICT OFNEWYORK ly In the Matter of Terrance Greene, Plaintiff, Affidavit of Service V. Case No. 24 — CV — 5228 (NSR) Commissioner Daniel F. Martuscello, Superintendent Marlyn Kopp, and C.O, K. Barnes Defendants.

Hanna Arias, being duly sworn, deposes and says: Tam over eighteen years of age, not a party to the action, and employed in the Office of the Attomey General of the State of New York. On the 11" day of April 2025, I served a copy of a Letter to Stay Valentin Order on the following named person(s):

Terrance Greene Pro Se DIN: 24701692 Essex Correctional Facility 354 Doremus Avenue Newark, NJ, 07105

the address designated by said person(s) for that purpose by depositing a true copy of same in a first class post-paid properly addressed wrapper, in an official depository under the exclusive care and custody of United States Post Office Department within the State of New York.

Sworn to before me this 11" Giga day of April 2025

Robert ib Assistant Attorney General