McPhee v. Laino
- Vincent Briccetti
- 7:22-cv-10095
- U.S. District Court · Southern District of New York
- 8
In McPhee v. Laino, Judge Briccetti ordered a second amended complaint, paused deadlines, and terminated Laino’s moot motion to dismiss.
Aasim McPhee, Sgt. N. Laino, the State of New York, John/Jane Does 1-100, and the seven corrections officers identified by defense counsel: Ileshema Thomas, Curtis Egloff, Brian Collins, Latanya Taylor, Jacqueline Webber, Brendan Haberin, and Melissa Cuomo.
What happened
In McPhee v. Laino, Aasim McPhee, who was representing himself and had permission to proceed without paying filing fees, filed an amended complaint adding the State of New York and unidentified defendants. The court had previously ordered defense counsel to identify corrections officers involved in the alleged October 3, 2022 incident.
After defense counsel identified Ileshema Thomas, Curtis Egloff, Brian Collins, Latanya Taylor, Jacqueline Webber, Brendan Haberin, and Melissa Cuomo, the court ordered McPhee to file a second amended complaint by July 5, 2023. The new complaint must replace the earlier one, include all necessary information, and list the full names of the defendants. The court also said the U.S. Marshals Service would handle service after the court screened the complaint, and it paused the service and response deadlines.
Judge Vincent L. Briccetti terminated Sgt. N. Laino’s motion to dismiss as moot. The court also certified that an appeal would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal. The order did not decide the underlying claims.
The detailed version
- McPhee v. Laino · No. 7:22-cv-10095
- Vincent Briccetti
- June 5, 2023
Background
Aasim McPhee, proceeding without a lawyer and with permission to proceed without prepaying filing fees, filed an amended complaint dated May 6, 2023, which the court received on May 10, 2023. The amended complaint added the State of New York and John/Jane Does 1-100 as defendants.
In an earlier order, the court allowed the amended complaint and directed defense counsel to identify corrections officers mentioned in it and provide addresses where they could be served. Defense counsel identified Ileshema Thomas, Curtis Egloff, Brian Collins, Latanya Taylor, Jacqueline Webber, Brendan Haberin, and Melissa Cuomo as involved in an October 3, 2022 incident involving McPhee and provided a service address for them.
Court’s Orders
The court ordered McPhee to file a second amended complaint by July 5, 2023, using the attached prisoner-complaint form. The complaint must list the full names of all defendants, including the seven identified corrections officers. It will completely replace, rather than supplement, the amended complaint, so it must include all information necessary to support McPhee’s claims.
Because McPhee was proceeding without prepaying filing fees, the court stated that he could rely on the court and the U.S. Marshals Service to serve the defendants. After receiving and screening the second amended complaint, the court would direct the Clerk of Court to issue summonses and provide the Marshals Service with the materials needed for service. The court expressly stated that McPhee did not need to take steps to serve the defendants himself.
The court stayed McPhee’s service deadline under Federal Rule of Civil Procedure 4(m) until further order. It also continued the stay on the time for all parties to answer, file motions, or otherwise respond to the amended complaint.
The court stated that, under its May 11, 2023 order, Sgt. N. Laino’s motion to dismiss the complaint was terminated as moot and directed the Clerk to terminate that motion. The court did not rule on the merits of McPhee’s claims. It certified that any appeal from the order would not be taken in good faith and denied permission to proceed without prepaying filing fees for purposes of an appeal.
Disposition
The court ordered McPhee to file a second amended complaint; stayed the service and response deadlines; terminated Laino’s motion to dismiss as moot; and denied permission to proceed without prepaying filing fees for an appeal.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.