Burks v. The City of Yonkers
- Philip Halpern
- 7:19-cv-01152-PMH
- U.S. District Court · Southern District of New York
- 2
In Burks v. City of Yonkers, Judge Halpern kept the complaint operative, ordered discovery planning, and denied appeal fee-waiver status.
Burks and the defendants, including the City of Yonkers, must proceed using the original complaint and coordinate a discovery schedule.
What happened
In Burks v. The City of Yonkers, Burks brought a self-represented civil-rights action against the City of Yonkers and other defendants. The court had directed Burks to identify police officers previously named as John Does in an amended complaint.
Burks did not respond to earlier orders or update his address, but later provided an updated address after receiving an order to show cause. He still did not file an amended complaint or otherwise move the case forward.
Judge Philip M. Halpern ruled that the original complaint would remain the operative pleading, directed the parties to confer about a discovery schedule, and denied fee-waiver status for any appeal. The order did not dismiss the case.
The detailed version
- Burks v. The City of Yonkers · No. 7:19-cv-01152-PMH
- Philip Halpern
- Nov. 9, 2020
Background
Burks filed this self-represented action under 42 U.S.C. § 1983. An earlier order directed Corporation Counsel for the City of Yonkers to identify police officers whom Burks had named as John Does and directed Burks to file an amended complaint naming those officers. Corporation Counsel identified the officers, and the City filed an answer.
The court later issued two orders requiring Burks to explain why the case should not be dismissed for failure to prosecute, meaning failure to move the case forward. The first mailing was returned, and Burks did not respond. The court then warned that failing to update his address and respond could result in dismissal. That mailing was also returned. A later order to show cause was mailed to Burks at multiple addresses.
Burks eventually responded by letter and provided an updated mailing address. The court extended his deadline to file the amended complaint through October 23, 2020. Burks did not file the amended complaint or take other steps to advance the action.
Ruling
Judge Philip M. Halpern deemed Burks's original complaint the operative pleading. The parties were directed to confer about a schedule for completing discovery and to file a proposed plan at least one week before the initial conference, which the court would schedule separately.
The court certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied Burks permission to proceed without paying the required fees for an appeal. The order did not dismiss the action.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.