Free Motion for Extension of Time - District Court of Delaware - Delaware

Case 1:04-cv-01542-GMS

Document 101

Filed 04/30/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Kevin Brathwaite, Plaintiff, v. Marcello Rispoli, et al., Defendants. ) ) ) ) ) ) ) ) )

C.A. No. 04-1542-GMS Trial by Jury Demanded

STATE DEFENDANTS' MOTION FOR ENLARGEMENT OF TIME
1.

Kevin Braithwaite ( Braithwaite ) is an inmate incarcerated and under the

supervision of the Delaware Department of Correction ( DOC ) housed at the Delaware Correctional Center ( DCC ) Smyrna, Delaware. 2. On or about December 22, 2004, Braithwaite commenced this action by

filing a Complaint pursuant to 42 U.S.C. 1983 with leave to proceed in forma pauperis alleging Eighth and Fourteenth Amendment Due Process violations against numerous personnel ("State defendants") of the Department of Corrections. ("DOC") (Complaint, passim). (D.I. 2). 3. On or about July 18, 2005, State Defendants filed a Motion to Dismiss

with an Opening Brief in Support thereof. (D.I. 28, 29). On or about August 5, 2005, Braithwaite filed an Answering Brief. (D.I. 33). State Defendants filed a Reply Brief on or about August 12, 2005. (D.I. 36). In a Memorandum Order dated March 29, 2006, State Defendants Warden Tom Carroll, Deputy Wardens Betty Burris and David Pierce, Charles Cunningham, Lt. Godwin, Sgt. Lovett, C/Os Overmeyer and Dunn' Motion to Dismiss was granted pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. (D.I.

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63). 4. On or about February 7, 2006, State Defendants Wallace, Stevenson,

Carpenter, Thomas and Nkowpara filed a Motion to Dismiss with an Opening Brief in Support thereof. (D.I. 58). Braithwaite filed an Answering Brief on or about February 21, 2006. (D.I. 60). On or about March 1, 2006, State Defendants filed a Reply Brief. (D.I. 61). In a Memorandum Opinion dated July 17, 2006, State Defendants' Motion to Dismiss was granted in part and denied in part. Presently, the remaining State Defendants are Marcello Rispoli, Robert Wallace, Matt Stevenson, Stephanie Carpenter and Violet Dunn. (D.I. 77). 5. (D.I. 80). On or about August 31, 2006, a Scheduling Order was issued by the Court. According to the Scheduling Order May 2, 2007, is the due date for

dispositive motions. 6. Due to the press of other litigation counsel is not able to file a Motion for During the last three months the

Summary Judgment within the time required.

Corrections' Unit has been short a deputy who was out on medical leave. The deputy's absence resulted in an increased caseload with its accompanying obligations and responsibilities within the unit. For these reasons, counsel is unable to meet the May 2, 2007, deadline established for the filing of dispositive motions. Counsel requests an enlargement of time of thirty (30) days from the May 2, 2007, date until on or before June 1, 2007, in which to file a dispositive motion in this matter. 7. 8. 9. This is State Defendants first request for an extension of time. There is no trial date scheduled in this case. A form of order is attached to this motion that will grant the State

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Defendants a thirty (30) day extension from May 2, 2007, until on or before June 1, 2007, in which to file State Defendants' dispositive motion. WHEREFORE, the State Defendants respectfully request that this Honorable Court grant their Motion and enter an Order, substantially in the form attached hereto, enlarging State Defendants' time to file a dispositive motion until on or before June 1, 2007.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Ophelia M. Waters Ophelia M. Waters, ID#3879 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302)577-8400 [email protected]

Dated: April 30, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Kevin Brathwaite, Plaintiff, v. Marcello Rispoli, et al., Defendants. ) ) ) ) ) ) ) ) )

C.A. No. 04-1542-GMS Trial by Jury Demanded

16.5 CERTIFICATION In compliance with Local Rule of Civil Procedure 16.5, counsel for the State Defendants making the request for an extension of time files this certification and states: I certify that I have sent a copy of the request for an extension of time to file a dispositive motion to the State Defendants.

STATE OF DELAWARE DEPARTMENT OF JUSTICE _/s/ Ophelia M. Waters Ophelia M. Waters, ID#3879 Deputy Attorney General Department of Justice 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302)577-8400 Attorney for Defendants Dated: April 30, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Kevin Brathwaite, Plaintiff, v. Marcello Rispoli et al., Defendants. ) ) ) ) ) ) ) ) )

C.A. No. 04-1542-GMS Trial by Jury Demanded

CERTIFICATION OF COUNSEL The undersigned counsel hereby certifies, pursuant to Rule 7.1.1 of the Local Rules for the District of Delaware, that: 1. The Plaintiff is an inmate incarcerated at the Delaware

Correctional Center, Smyrna, Delaware. 2. The Plaintiff is not able to be reached by telephone; therefore,

counsel for the State Defendants has spent no time in attempting to reach an agreement on the subject of the Motion for Enlargement of Time. 3. The undersigned counsel assumes that the Motion is opposed. STATE OF DELAWARE DEPARTMENT OF JUSTICE _/s/ Ophelia M. Waters Ophelia M. Waters, ID#3879 Deputy Attorney General Department of Justice 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302)577-8400 Attorney for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on April 30, 2007, I electronically filed State Defendants' Motion for Enlargement of Time with the Clerk of Court using CM/ECF. I hereby certify that on April 30, 2007, I have mailed by United States Postal Service, the document to the following non-registered participant: Kevin C. Brathwaite; SBI #315294; Delaware Correctional Center; 1181 Paddock Road; Smyrna, DE 19977. . STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Ophelia M. Waters Ophelia M. Waters, I.D. #3879 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302)577-8400 [email protected]