Free Motion for Order - District Court of Connecticut - Connecticut

Case 3:00-cv-00720-JCH

Document 114

Filed 12/15/2006

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT WILLIAM CONNELLY, Plaintiff, v. DAVID COSGROVE, ET AL., Defendants. : : : : : : : : : : :

CIVIL ACTION NO. 3:00 CV 720 (JCH)

DECEMBER 15, 2006

MOTION FOR SCHEDULING ORDER Pursuant to the Court's Order of November 21, 2006, Plaintiff William Connelly respectfully proposes the following scheduling order be entered in this case: I. Plaintiff shall have until January 31, 2007 to submit a motion for leave to file an amended complaint together with a proposed amended complaint. A. Plaintiff's proposed amended complaint shall add a single cause of action under

42 U.S.C. § 1983 against Theresa Lantz in her official capacity as Commissioner of Correction. The complaint will allege that Commissioner Lantz' refusal to consider plaintiff for early release under Conn. Gen. Stat. § 18-100(e)(1989) violates his rights under the Ex Post Facto clause of the U.S. Constitution. B. Plaintiff's amended complaint shall remove his claims against defendants

Golemba and Whidden, and shall clarify, narrow or remove his claims against the remaining defendants in their individual capacities. II. Plaintiff shall have until January 31, 2007 to supplement his opposition to defendants' summary judgment motion.

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III. Plaintiff shall have until April 16, 2007 to complete discovery. Plaintiff may take the following discovery: A. Discovery on the historical discretion of the Commissioner of Correction to

classify inmates for early release under § 18-100(e) from 1988 to the present. Plaintiff may elect to depose Commissioner Lantz after receiving and reviewing her responses to written discovery. In the event Commissioner Lantz proves unable to answer questions concerning the exercise of discretion by the Commissioner before she assumed her office, plaintiff may take up to two (2) additional depositions to fill any gap. B. C. Plaintiff's prison records. Any contracts between Virginia and Connecticut concerning the confinement of

Connecticut inmates in effect during plaintiff's confinement in Virginia. D. E. Defendants' depositions. Such other and further discovery as the parties may agree or the Court may direct.

IV. A status and scheduling conference shall be set for April __, 2007. At that conference, the parties shall address a further schedule to resolve the case.

In support of this proposed order, plaintiff states as follows: 1. Time to amend complaint. Plaintiff's counsel is working diligently to analyze and investigate his claims. The delay sought to amend the complaint is not sought to obtain more time to add new the claim against Commissioner Lantz, but to further investigate the claims that plaintiff has already pled. Counsel is hindered in this effort by the difficulty of communicating with Mr. Connelly in prison and the need to find potential third-party witnesses. Nevertheless, as a result of this analysis and investigation to date, Mr. Connelly is

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prepared to drop his claims against defendants Golemba and Whidden and at least to narrow his claims against other defendants who may remain. The undersigned believes that allowing additional time to complete this analysis and investigation will result in fewer and narrower claims than if an amended pleading were required immediately. In light of the intervening holidays, plaintiff requests a deadline at the end of January. 2. Time to supplement the opposition to summary judgment. Mr. Connelly prepared his opposition to defendants' summary judgment motion pro se. To the extent that he seeks to pursue his claims, Mr. Connelly should have the benefit of the assistance of experienced counsel in opposing the motion. The specific substance of any supplemental papers will depend on the ongoing investigation of counsel, but the undersigned presently anticipates submitting (a) a supplemental affidavit of the plaintiff, (b) a replacement Rule 56 statement of disputed facts, and (c) a short supplemental memorandum of law. In light of the ongoing investigation and the intervening holidays, plaintiff requests a deadline at the end of January. Plaintiff submitted his papers in opposition to defendants' motion for summary judgment shortly before the appointment of counsel. Defendants have not yet submitted any reply, and so will not be prejudiced by a supplemental submission to which they may respond. 3. Addition of Theresa Lantz in her official capacity. Plaintiff commenced this case by complaint filed April 5, 2000. Among other claims and other defendants, plaintiff sued defendant Virginia Golemba under 42 U.S.C. § 1983 for failure to consider his early release eligibility under the statutes, rules, regulations, procedures, policies, guidelines and directives in effect on the date of the commission of his offenses. (See Complaint ¶¶ 13, 19, 38.) Plaintiff's claim against the Commissioner of Correction arises out of the conduct set forth in that original pleading; moreover, the Commissioner must or should have known that but for

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plaintiff's mistake in naming Golemba, the claim would have been brought against the Commissioner; finally, the Commissioner will suffer no prejudice from being brought into this litigation at this point, as Golemba's interests have all along been represented by the Connecticut Attorney General. 4. Discovery. Under Conn. Gen. Stat. § 18-100(e), as in effect on the date of plaintiff's offenses, the Commissioner of Correction was vested with discretion whether to classify inmates for early release. Plaintiff has not yet had discovery concerning the historical exercise by the Commissioner of such discretion. Further, because plaintiff was a pro se prison inmate proceeding in forma pauperis, he has not had a meaningful opportunity to depose the defendants. In addition, to pursue his claims against defendant Cupka, plaintiff seeks copies of the interstate contracts between Virginia and Connecticut that he was denied by the Department of Correction. Finally, plaintiff seeks a copy of his own prison records. Notwithstanding the age of the case, it is appropriate to reopen discovery briefly to permit discovery concerning these issues. 5. Rule 1 Considerations. Notwithstanding the amendment of the complaint and the short period for additional discovery, the issues in the case will actually be narrowed and the case advanced towards conclusion by the granting of this motion. 6. Remaining scheduling issues. Plaintiff proposes a status conference be held shortly after the completion of discovery to discuss the most efficient means to resolve the case at that point. 7. Defendants' Position. Plaintiff's counsel has conferred with counsel for the defendants, who does not object to a January 31, 2007 filing date for plaintiff's amended complaint. Counsel for the defendants does object to other dates, and to the course of litigation,

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proposed in this motion for scheduling order. Counsel for defendants proposed that the objected-to dates and course of litigation be discussed with the Court during the telephonic conference scheduled for Wednesday, December 20, 2006.

PLAINTIFF, WILLIAM CONNELLY By: /s/William C. Mercer Jonathan B. Tropp (ct11295) [email protected] Catherine Dugan O'Connor (ct17316) [email protected] William C. Mercer (ct26526) [email protected] DAY, BERRY & HOWARD, LLP One Canterbury Green Stamford, CT 06901 Tel: (203) 977-7300 Fax: (203) 977-7301 His Attorneys

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was mailed, by U.S. Mail, First Class Postage Prepaid on December 15, 2006, to the following:

Robert B. Fiske, III Assistant Attorney General 110 Sherman Street Hartford, CT 06105 /s/ William C. Mercer William C. Mercer

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