Case: McKenna v. Wright

1:01-cv-06571 | U.S. District Court for the Southern District of New York

Filed Date: July 19, 2001

Closed Date: 2005

Clearinghouse coding complete

Case Summary

In 1999, plaintiff, a New York state prisoner, was diagnosed by prison medical staff as having Hepatitis C virus ("HCV"). Based on prison policies, treatment of the condition was denied him at least twice--first, because prison officials thought he was to be released within a year (he was not, however) and, then, because he was not enrolled in a prison substance abuse program. (A third denial resulted from his liver condition.) In late 2002, he enrolled in a prison substance abuse program an…

In 1999, plaintiff, a New York state prisoner, was diagnosed by prison medical staff as having Hepatitis C virus ("HCV"). Based on prison policies, treatment of the condition was denied him at least twice--first, because prison officials thought he was to be released within a year (he was not, however) and, then, because he was not enrolled in a prison substance abuse program. (A third denial resulted from his liver condition.) In late 2002, he enrolled in a prison substance abuse program and was approved for HCV treatment beginning in January 2003; however, by then his medical condition had deteriorated and he was too weak to continue treatment. He exhausted his administrative remedies and, on July 19, 2001, filed a pro se suit in the U.S. District Court for the Southern District of New York. On November 16, 2001, he moved for a permanent injunction, enjoining delay of his medical treatment by a specialist. On March 5, 2002, District Judge P. Whitman Knapp denied plaintiff's motion. On July 29, 2003, the matter was reassigned to District Judge Harold Baer, Jr. Plaintiff then filed an amended complaint, with the assistance of pro bono private counsel, on August 21, 2003.

The new complaint alleged a series of failures to test for plaintiff's condition despite known danger signs of his disease, failure to initiate treatment when the need for treatment was apparent, failure to send plaintiff for follow-up visits ordered by doctors, and denial of treatment on the basis of inapplicable or flawed prison policies. The new complaint sought an order (a) requiring defendants to provide plaintiff with medical treatment for his HCV, including treatment by a specialist in HCV and cirrhosis, (b) declaring that defendants violated his Eight Amendment rights, (c) declaring that defendants violated his Fourteenth Amendment right to substantive due process, (d) enjoining defendants from conditioning medical care on non-medical criteria, (e) requiring defendants to pay compensatory damages of no less than $3,000,000, (f) requiring defendants to pay punitive damages of no less than $3,000,000, (g) requiring defendants to pay plaintiff's attorneys' fees and costs; and (h) providing any further relief that the district court deemed fair and equitable.

On October 3, 2003, the defendants moved to dismiss for failure to state a claim. Their motion asserted lack of personal involvement as to some defendants, qualified immunity as to all defendants, and insufficiency of the constitutional claims. In an unpublished ruling on January 24, 2004, the district court (Judge Baer) dismissed the Fourteenth Amendment substantive due process claim, dismissed the complaint as to one defendant for lack of personal involvement, upheld the sufficiency of the Eighth Amendment claim, and rejected the qualified immunity defense as to all other defendants (given the preliminary stage of the litigation). The defendants filed an interlocutory appeal with the U.S. Court of Appeals for the Second Circuit.

On October 18, 2004, a panel of the Second Circuit issued its' opinion. First, it held that the defendants could raise a defense of qualified immunity as part of their motion to dismiss for failure to state a claim but, in that procedural setting, it would be very difficult for a court to have sufficient information to rule that the defense warranted dismissal. Next, the appellate court agreed with the district judge that, based on the amended complaint's allegations, the plaintiff had made a sufficient claim that the defendants were deliberately indifferent to his serious medical needs. Such a claim, if proven, establishes an Eighth Amendment violation based on denial of adequate medical care for prisoners. Because the availability of the qualified immunity defense could not then be established as a matter of law, the appeal was dismissed and the case remanded to the district court. McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004) (Circuit Judge Jon O. Newman).

Just prior to the remand, the case had been administratively reassigned on September 3, 2004, at the district court to District Judge Kenneth M. Karas. Discovery procedures continued over the following months but, also, in October 2005, DOCS revised its policy regarding HCV treatment. No longer would such treatment be conditioned on a prisoner's participation in a DOCS substance abuse program. Likely in anticipation of this policy change, on September 9, 2005, Judge Karas referred the case to Magistrate Judge Theodore H. Katz for settlement. The PACER docket sheet shows that on November 17, 2005, Judge Karas signed an order of settlement and dismissal, in accordance with the parties' stipulation for dismissal. The order was filed by the clerk on November 28, 2005, together with a directive from the court that the defendants pay $100,000 to the plaintiff, as part of the settlement.

We do not have a copy of the settlement or further details as to its terms, nor any information indicating further activity in this case.

Other cases in the Civil Rights Litigation Clearinghouse database addressing similar claims in New York federal and state courts include PC-NY-51, -52, and -53.

Summary Authors

Mike Fagan (5/1/2008)

People


Judge(s)

Baer, Harold Jr. (New York)

Karas, Kenneth M. (New York)

Katz, Theodore H. (New York)

Katzmann, Robert A. (New York)

Knapp, Percy Whitman (New York)

Miner, Roger Jeffrey (New York)

Newman, Jon Ormond (New York)

Attorneys(s) for Plaintiff

Alestra, Mary Florence (New York)

Aronowitz, Stacey P. (New York)

Cocariu, Dacia Christina (New York)

Judge(s)

Baer, Harold Jr. (New York)

Karas, Kenneth M. (New York)

Katz, Theodore H. (New York)

Katzmann, Robert A. (New York)

Knapp, Percy Whitman (New York)

Miner, Roger Jeffrey (New York)

Newman, Jon Ormond (New York)

Attorneys(s) for Plaintiff

Alestra, Mary Florence (New York)

Aronowitz, Stacey P. (New York)

Cocariu, Dacia Christina (New York)

Jones, Kristina Michele (Georgia)

Suh, Sung-Hee (New York)

Wade, Jeffrey P. (New York)

Attorneys(s) for Defendant

Belohlavek, Michael S. (New York)

Knudsen, John E. (New York)

Oxhorn, Melanie L. (New York)

Spitzer, Eliot (New York)

Documents in the Clearinghouse

Document

1:01-cv-06571

Docket [PACER]

Nov. 28, 2005

Nov. 28, 2005

Docket

1:01-cv-06571

Memorandum and Order [Denying Plaintiff's Motion for a Preliminary Injunction]

2002 WL 338375, 2002 U.S.Dist.LEXIS 3489

March 4, 2002

March 4, 2002

Order/Opinion
18

1:01-cv-06571

Opinion [Directing Defendants to Reply to Plaintiff's Motion for Reconsideration]

2002 U.S.Dist.LEXIS 5001

March 27, 2002

March 27, 2002

Order/Opinion
21

1:01-cv-06571

Order [Reiterating Guidelines for Response to Plaintiff's Motion for Reconsideration]

2002 U.S.Dist.LEXIS 10537

June 10, 2002

June 10, 2002

Order/Opinion
29

1:01-cv-06571

Order [Directing Defendants to Submit a Supplemental Response Re: Proposed Medical Treatment]

2003 WL 549398, 2003 U.S.Dist.LEXIS 2201

Feb. 10, 2003

Feb. 10, 2003

Order/Opinion

1:01-cv-06571

Memorandum & Order [Granting Plaintiff's Application for Appointment of Counsel]

2003 WL 302225, 2003 U.S.Dist.LEXIS 2197

Feb. 11, 2003

Feb. 11, 2003

Order/Opinion
54

1:01-cv-06571

Opinion & Order [Granting in Part and Denying in Part Defendants' Motion for Summary Judgment]

2004 WL 102752, 2004 U.S.Dist.LEXIS 725

Jan. 21, 2004

Jan. 21, 2004

Order/Opinion

04-00492

Appellate Opinion

U. S. Court of Appeals for the Second Circuit

386 F.3d 432

Oct. 18, 2004

Oct. 18, 2004

Order/Opinion

1:01-cv-06571

Memorandum Hepatitis C Primary Care Guideline

New York state trial court

Oct. 13, 2005

Oct. 13, 2005

Discovery Material/FOIA Release

Revised Hepatitis C Guideline

No Court

Oct. 18, 2005

Oct. 18, 2005

Discovery Material/FOIA Release

Resources

Docket

Last updated Aug. 8, 2022, 3:17 a.m.

ECF Number Description Date Link Date / Link
1

Order endorsed on declaration in support of request to proceed in forma pauperis; I.F.P. request is granted. ( signed by Chief Judge Michael B. Mukasey ) (db) (Entered: 08/02/2001)

July 19, 2001

July 19, 2001

2

COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). (db) (Entered: 08/02/2001)

July 19, 2001

July 19, 2001

Magistrate Judge Theodore H. Katz is so designated. (db) (Entered: 08/02/2001)

July 19, 2001

July 19, 2001

3

APPLICATION by Edward McKenna for the Court to request counsel . (db) (Entered: 08/02/2001)

July 19, 2001

July 19, 2001

4

U.S. MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE of summons and complaint executed as to John P. Keane by personal service on 8/31/01 . Answer due on 9/20/01 for John P. Keane . (bai) (Entered: 09/28/2001)

Sept. 27, 2001

Sept. 27, 2001

5

U.S. MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE of summons and complaint executed as to Lester N. Wright by personal service on 9/6/01 . Answer due on 9/26/01 for Lester N. Wright . (bai) (Entered: 09/28/2001)

Sept. 27, 2001

Sept. 27, 2001

6

U.S. MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE of Summons and Complaint executed as to T. J. Miller by personal service on 8/31/01. Answer due on 9/20/01 for T. J. Miller. (tp) (Entered: 10/30/2001)

Oct. 26, 2001

Oct. 26, 2001

6

U.S. MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE of Summons and Complaint executed as to Mervat Makram by personal service on 8/31/01. Answer due on 9/20/01 for Mervat Makram. (tp) (Entered: 10/30/2001)

Oct. 26, 2001

Oct. 26, 2001

6

U.S. MARSHAL'S PROCESS RECEIPT AND RETURN OF SERVICE of Summons and Complaint executed as to Frank Lancellotti by personal service on 8/31/01. Answer due on 9/20/01 for Frank Lancellotti. (tp) (Entered: 10/30/2001)

Oct. 26, 2001

Oct. 26, 2001

8

NOTICE OF MOTION by Edward McKenna; for an Order pursuant to Rule 65 of the FRCP to enjoin defendants Dr. Lester N. Wright, Dr. Mervat Makram, and Dr. Frank Lancellotti from delaying plaintiff immediate medical treatment that is consistent with the specialist's order without further delay . Return date 11/19/01. Affirmation of Edward mcKenna in support attached. (kkc) (Entered: 11/20/2001)

Nov. 16, 2001

Nov. 16, 2001

9

Memo-Endorsement on letter addressed to Judge Knapp from John E. Knudsen, dated 11/19/01; defts' time to respond reset to 11/27/01 for [8-1] motion for an Order pursuant to Rule 65 of the FRCP to enjoin defendants Dr. Lester N. Wright, Dr. Mervat Makram, and Dr. Frank Lancellotti from delaying plaintiff immediate medical treatment that is consistent with the specialist's order without further delay . ( signed by Judge Whitman Knapp ); Copies mailed. (sn) (Entered: 11/28/2001)

Nov. 27, 2001

Nov. 27, 2001

10

MEMORANDUM OF LAW by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Mervat Makram, All Unnamed Persons in opposition to [8-1] motion for an Order pursuant to Rule 65 of the FRCP to enjoin defendants Dr. Lester N. Wright, Dr. Mervat Makram, and Dr. Frank Lancellotti from delaying plaintiff immediate medical treatment that is consistent with the specialist's order without further delay . (db) (Entered: 12/04/2001)

Nov. 30, 2001

Nov. 30, 2001

11

AFFIDAVIT of Lester N. Wright by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Mervat Makram, All Unnamed Persons in opposition to [8-1] motion for an Order pursuant to Rule 65 of the FRCP to enjoin defendants Dr. Lester N. Wright, Dr. Mervat Makram, and Dr. Frank Lancellotti from delaying plaintiff immediate medical treatment that is consistent with the specialist's order without further delay . (db) (Entered: 12/04/2001)

Nov. 30, 2001

Nov. 30, 2001

12

NOTICE OF MOTION by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Mervat Makram; for an order pursuant to the Rule 12(b)(6) of the F.R.C.P. granting defendants motion to dismiss ; Return date 2/13/02. (pl) (Entered: 12/13/2001)

Dec. 12, 2001

Dec. 12, 2001

13

MEMORANDUM OF LAW by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Mervat Makram, All Unnamed Persons in support of [12-1] motion for an order pursuant to the Rule 12(b)(6) of the F.R.C.P. granting defendants motion to dismiss . (pl) (Entered: 12/13/2001)

Dec. 12, 2001

Dec. 12, 2001

14

ORDER; pltff's request for an extension of time to file his reply brief is granted; pltff may file his reply brief by 12/21/01 for [8-1] motion for an Order pursuant to Rule 65 of the FRCP to enjoin defendants Dr. Lester N. Wright, Dr. Mervat Makram, and Dr. Frank Lancellotti from delaying plaintiff immediate medical treatment that is consistent with the specialist's order without further delay . ( signed by Judge Whitman Knapp ); Copies mailed. (sn) (Entered: 12/18/2001)

Dec. 14, 2001

Dec. 14, 2001

15

MEMORANDUM & ORDER; denying [8-1] motion for an Order pursuant to Rule 65 of the FRCP to enjoin defendants Dr. Lester N. Wright, Dr. Mervat Makram, and Dr. Frank Lancellotti from delaying plaintiff immediate medical treatment that is consistent with the specialist's order without further delay . ( by Judge Whitman Knapp ); Copies mailed. (djc) (Entered: 03/06/2002)

March 5, 2002

March 5, 2002

16

NOTICE OF MOTION by Edward McKenna, for reconsideration of [15-1] order . Return date 4/8/02. (kw) (Entered: 03/27/2002)

March 20, 2002

March 20, 2002

17

MEMORANDUM OF LAW by Edward McKenna in support of [16-1] motion for reconsideration of [15-1] order. (kw) (Entered: 03/27/2002)

March 20, 2002

March 20, 2002

19

Letter filed by Edward McKenna addressed to Judge Knapp from Edward McKenna, dated 03/17/02. (djc) (Entered: 04/23/2002)

March 20, 2002

March 20, 2002

18

ORDER,; Defendants are directed to respond to Plaintiff Edward McKenna's motion for Reconsideration. In their response, Defendants should, at a minimum, provide the Court twith the information as set forth in this Order ; ( signed by Judge Whitman Knapp ); Copies mailed. (djc) (Entered: 03/27/2002)

March 26, 2002

March 26, 2002

21

ORDER; defendants response to motion reset to 7/10/02 for [16-1] motion for reconsideration of [15-1] order ; as we indicated in our 3/21/02 order, the defendants should at a minimum, provide us with the following information as listed in this Order . ( signed by Judge Whitman Knapp ); Copies mailed. (pl) (Entered: 06/14/2002)

June 12, 2002

June 12, 2002

22

AFFIDAVIT of Mervat R. Markram Re: [16-1] motion for reconsideration of [15-1] order . (pl) (Entered: 07/17/2002)

July 11, 2002

July 11, 2002

23

Letter filed by Edward McKenna addressed to Ms. Valenti, dated 8/21/00, re: given a new inhaler. (kw) (Entered: 12/04/2002)

Dec. 3, 2002

Dec. 3, 2002

24

Letter filed by Edward McKenna addressed to Mr. Zwibel, dated 10/31/02, re: needing representation on his case. (kw) (Entered: 12/04/2002)

Dec. 3, 2002

Dec. 3, 2002

25

Letter filed by Edward McKenna addressed to Judge Knapp, dated 11/11/02, re: changing medical status. (kw) (Entered: 12/04/2002)

Dec. 3, 2002

Dec. 3, 2002

26

Letter filed by Edward McKenna addressed to Judge Knapp, dated 11/14/02, re: application for counsel. (kw) (Entered: 12/04/2002)

Dec. 3, 2002

Dec. 3, 2002

27

NOTICE OF MOTION by Edward McKenna for reconsideration of McKenna's original request to be seen by Benedict J. Maliakkal, M.D. Gastroenterologist ; Return Date not indicated; (djc) (Entered: 01/27/2003)

Jan. 22, 2003

Jan. 22, 2003

28

Letter filed addressed to Judge Knapp from Edward McKenna, dated 10/7/02, re: requesting assistance with the decision on motion for reconsideration. (jco) Modified on 02/13/2003 (Entered: 02/13/2003)

Feb. 7, 2003

Feb. 7, 2003

30

MEMORANDUM & ORDER; granting [3-1] motion for the Court to request counsel; the Pro Se Office for this judicial district is directed to request pro bono counsel for the plaintiff in accordance with the pro bono panel's procedures ; in the interim, the defendants' motion to dismiss the plaintiff's action (Docket Nos. 12 and 13) is held in abeyance until 8/31/03. However, the supplemental briefs and affidavits or, in the alternative, the supplemental statement of non-opposition which the defendants must shortly submit in response to the plaintiff's motion for reconsideration in accordance with our 2/10/03 Order shall not be affected by our decision to grant the instant applications. The defendants shall submit the necessary documents as directed by 3/12/03 . ( signed by Judge Whitman Knapp ); copy forwarded to Pro Se Office. (kkc) (Entered: 02/19/2003)

Feb. 14, 2003

Feb. 14, 2003

31

NOTICE of attorney appearance for Edward McKenna by Sung Hee Suh. (kw) (Entered: 04/07/2003)

April 3, 2003

April 3, 2003

32

NOTICE OF MOTION by Edward McKenna; for an Order pursuant to Rules 15(a) and 15(d) of the F.R.C.P. for leave to file amended complaint . Return Date not indicated. (jco) (Entered: 07/21/2003)

July 18, 2003

July 18, 2003

33

MEMORANDUM OF LAW by Edward McKenna in support of [32-1] motion for an Order pursuant to Rules 15(a) and 15(d) of the F.R.C.P. for leave to file amended complaint. (jco) (Entered: 07/21/2003)

July 18, 2003

July 18, 2003

34

Notice of Case reassignment to Judge Harold Baer Jr. . Copy of notice and judge's rules mailed to Attorney(s) of record: Sung Hee Suh, Edward McKenna . (gf) (Entered: 07/30/2003)

July 29, 2003

July 29, 2003

PRETRIAL CONFERENCE set at 2:00 9/16/03 before Judge Harold Baer Jr. in Room 2230 (cd) (Entered: 08/12/2003)

Aug. 8, 2003

Aug. 8, 2003

35

AFFIDAVIT OF SERVICE of notice of reassignment as to John Knudsen, Assistant Attorney General by U.S. Postal Service on 8/12/03 . . (dle) (Entered: 08/18/2003)

Aug. 13, 2003

Aug. 13, 2003

36

ORDER, granting [32-1] motion for an Order pursuant to Rules 15(a) and 15(d) of the F.R.C.P. for leave to file amended complaint. ( signed by Judge Harold Baer Jr. ); (kw) (Entered: 08/19/2003)

Aug. 18, 2003

Aug. 18, 2003

37

DEMAND for jury trial by Edward McKenna . (cd) (Entered: 08/22/2003)

Aug. 21, 2003

Aug. 21, 2003

37

AMENDED COMPLAINT amending [2] Complaint against Gleen S. Goord, All Unnamed Persons, Individuals, Officers, Civilians, Individually and in their Official Capacities, John P. Keane, Frank Lancellotti, Mervat Makram, T. J. Miller, Lester N. Wright. Summons issued.Document filed by Edward McKenna. Related document: [2] Complaint.(rag, ) (Entered: 11/16/2004)

Aug. 21, 2003

Aug. 21, 2003

38

AFFIDAVIT OF SERVICE of summons and complaint as to John E. Cunningham Jr. by Teresa Wuerdeman on 8/26/03. Answer due on 9/15/03 for John E. Cunningham Jr. (jco) (Entered: 09/10/2003)

Sept. 5, 2003

Sept. 5, 2003

40

AFFIDAVIT OF SERVICE of summons and complaint as to Raymond Cunningham by Rhonda Fox, Inmate Rcds. Coord on 9/4/03 . . (dle) (Entered: 09/17/2003)

Sept. 12, 2003

Sept. 12, 2003

41

ORDER, The deadline for defendants to answer the complaint is 9/26/03. The deadline for plaintiff to reply to defendants' answer is 10/3/03. Discovery may commence from 10/3/03 and must be completed by 1/19/04. The fully-briefed dispositive motion deadline is 2/20/04. The joint pretrial order is due 4/25/04. This case is added to the May 2004 trailing trial calendar. ( signed by Judge Harold Baer Jr. ) (sb) (Entered: 09/23/2003)

Sept. 22, 2003

Sept. 22, 2003

42

ORDER, that the deadline for defendants to move to dismiss the amended complaint is 10/3/03, and the deadline for plaintiff to respond to defendants motion is 10/24/03 . ( signed by Judge Harold Baer Jr. ). (tp) (Entered: 09/30/2003)

Sept. 29, 2003

Sept. 29, 2003

Terminated documents 12-1, 17-1, 27-1 pursuant to instructions of Judge Baer as indicated on the CJRA report. (rag) (Entered: 10/01/2003)

Sept. 30, 2003

Sept. 30, 2003

43

NOTICE OF MOTION (FILED ON SERVICE DATE) by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Mervat Makram for an order pursuant to Rule 12(b)(6) of the FRCP granting defendants' motion to dismiss . Return Date 11/24/03. (moc) (Entered: 10/07/2003)

Oct. 3, 2003

Oct. 3, 2003

44

MEMORANDUM OF LAW by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Mervat Makram in support of [43-1] motion for an order pursuant to Rule 12(b)(6) of the FRCP granting defendants' motion to dismiss . (moc) (Entered: 10/07/2003)

Oct. 6, 2003

Oct. 6, 2003

45

DECLARATION of John Knudsen by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Mervat Makram in support Re: [43-1] motion for an order pursuant to Rule 12(b)(6) of the FRCP granting defendants' motion to dismiss . (moc) (Entered: 10/07/2003)

Oct. 6, 2003

Oct. 6, 2003

46

MEMORANDUM OF LAW by Edward McKenna in opposition to [43-1] motion for an order pursuant to Rule 12(b)(6) of the FRCP granting defendants' motion to dismiss. Received in the night deposit box on 10/24/03 at 6:19 p.m. (sb) (Entered: 10/28/2003)

Oct. 24, 2003

Oct. 24, 2003

47

REPLY MEMORANDUM by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Mervat Makram in support re: [43-1] motion for an order pursuant to Rule 12(b)(6) of the FRCP granting defendants' motion to dismiss . (moc) (Entered: 11/05/2003)

Nov. 3, 2003

Nov. 3, 2003

48

AFFIRMATION of John Knudsen re defts' appliation to take the deposition of plntf McKenna. Document filed by John P. Keane, Frank Lancellotti, Mervat Makram, T. J. Miller, Lester N. Wright. (cd, ) (Entered: 12/05/2003)

Nov. 26, 2003

Nov. 26, 2003

49

ORDER; that, pursuant to F.R.C.P. 30(a), and upon the notice given by defendnats to plaintiff, defendants may take the deposition of plaintiff/inmate Edward McKenna at the prison where he is confined. (Signed by Judge Harold Baer on 12/2/03) (pl, ) (Entered: 12/11/2003)

Dec. 2, 2003

Dec. 2, 2003

50

ENDORSED LETTER addressed to Judge Harold Baer from Stacy P. Aronowitz dated 12/4/2003 re: request for an order compelling a medical examination of Edward McKenna by an outside specialist. So far as I can see there has been adequate medical attention - but I am not a physician nor am I contemplating being one. If you believe a hearing will dispel the AG's contentions and provide me with the requisite proof for a mandatory injunction, I will be glad to hold such a hearing, just call with a date convenient to all concerned and your witnesses. The last week of the month is more or less available. For now your application is denied. (Signed by Judge Harold Baer on 12/12/2003) (kkc, ) (Entered: 01/02/2004)

Dec. 16, 2003

Dec. 16, 2003

51

ENDORSED LETTER addressed to Judge Harold Baer Jr. from Stacy P. Aronowitz dated 12/12/2003 re: Extension of discovery cutoff dates. The application is granted. Extension of discovery is granted both general and expert. Sadly I will extend the FBM date as well but the trial will go forward in May and without 60 days to decide motions,I may have not reached yours. I'll do my part and adjourn FBM to March 1, 2004 after that you will be on your own.. (Signed by Judge Harold Baer on 12/16/2003) (jsa, ) (Entered: 01/08/2004)

Dec. 16, 2003

Dec. 16, 2003

Set Deadlines/Hearings: Discovery due by 3/1/2004. (jsa, ) (Entered: 01/08/2004)

Dec. 16, 2003

Dec. 16, 2003

52

ENDORSED LETTER addressed to Judge Harold Baer Jr. from John E. Knudsen dated 12/22/2003 re: adjournment of oral argument. The Court directs that unless a decision id forthcoming, you will comply with the oral argument timetable and we can hear you out on qualified immunity issues and any others. Discovery is stayed only until that date and time i.e. 1/5/2004.. (Signed by Judge Harold Baer on 12/29/2003) (jsa, ) (Entered: 01/14/2004)

Dec. 30, 2003

Dec. 30, 2003

53

ENDORSED LETTER addressed to Judge Harold Baer, Jr. from John E. Knudsen dated 1/5/04 re: Discovery will be stayed through 1/19 and if no decision you may seek a further stay. (Signed by Judge Harold Baer on 1/6/04) (sac, ) (Entered: 01/20/2004)

Jan. 7, 2004

Jan. 7, 2004

54

OPINION AND ORDER # 89587 re: [43] Motion to Dismiss filed by John P. Keane, T. J. Miller, Lester N. Wright, Frank Lancellotti, Mervat Makram; defendants' motion to dismiss is granted-in-part and denied-in-part. All of plaintiffs' claims against defendant Goord as well as plaintiff's substantive due process claim under the Fourteenth Amendment against all defendants are dismissed. The Clerk of the Court is requested to close this motion and any outstanding motions. (Signed by Judge Harold Baer on 1/21/04) (ae, ) (Entered: 01/26/2004)

Jan. 21, 2004

Jan. 21, 2004

56

ORDER; Discovery must be completed by 3/1/04. The fully-briefed dispositive motion deadline is 4/15/04. The joint pretrial order is 7/10/04. This case is added to the July 2004 trailing trial calendar. (Signed by Judge Harold Baer on 1/20/04) (sb, ) (Entered: 01/29/2004)

Jan. 21, 2004

Jan. 21, 2004

55

NOTICE OF INTERLOCUTORY APPEAL from [54] Memorandum & Opinion,,. Document filed by All Unnamed Persons, Individuals, Officers, Civilians, Individually and in their Official Capacities, John P. Keane, Frank Lancellotti, Mervat Makram, T. J. Miller, Lester N. Wright. Filing fee $ 255.00, receipt number E497099. Copies of Notice of Interlocutory Appeal mailed to Attorney(s) of Record: Stacy P. Aronowitz, Esq.. (dt, ) (Entered: 01/26/2004)

Jan. 22, 2004

Jan. 22, 2004

57

ENDORSED LETTER addressed to Judge Baer from John E. Knudsen dated 1/22/04 re: Counsel for defendants are filing the enclosed Notice of Appeal. Whether you can find the 17th floor without seeking permission here first is unclear to me but my concern is not wasting more time especially with a very sick older man and where summary judgment may have avoided some of the time lag but assuming you are procedurally correct, I will certainly stay the matter in its entirety at least for now. (Signed by Judge Harold Baer on 1/23/04) (sb, ) (Entered: 02/02/2004)

Jan. 23, 2004

Jan. 23, 2004

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: [55] Notice of Interlocutory Appeal,. (dt, ) (Entered: 01/26/2004)

Jan. 26, 2004

Jan. 26, 2004

Transmission of Notice of Appeal to the District Judge re: [55] Notice of Interlocutory Appeal,. (dt, ) (Entered: 01/26/2004)

Jan. 26, 2004

Jan. 26, 2004

58

Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for [55] Notice of Interlocutory Appeal, filed by John P. Keane, T. J. Miller, Lester N. Wright, Frank Lancellotti, Mervat Makram, All Unnamed Persons, Individuals, Officers, Civilians, Individually and in their Official Capacities USCA Case Number 04-0492, 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (dt, ) (Entered: 03/02/2004)

March 2, 2004

March 2, 2004

59

TRANSCRIPT of proceedings held on 1/12/04 before Judge Harold Baer.(ja, ) (Entered: 03/09/2004)

March 8, 2004

March 8, 2004

60

NOTICE of regarding addition of attorneys of record. That Stacy P. Aronwitz and Kristina M. Zarlengo, in addition to Sung-Hee Suh have been retained as counsel for Plaintiff. Document filed by Edward McKenna. (sac, ) (Entered: 03/26/2004)

March 8, 2004

March 8, 2004

Appeal Record Sent to USCA (File). Indexed record on Appeal Files for [55] Notice of Interlocutory Appeal, filed by John P. Keane, T. J. Miller, Lester N. Wright, Frank Lancellotti, Mervat Makram, All Unnamed Persons, Individuals, Officers, Civilians, Individually and in their Official Capacities USCA Case Number 04-0492, were transmitted to the U.S. Court of Appeals. (dt, ) (Entered: 03/17/2004)

March 17, 2004

March 17, 2004

61

NOTICE OF CASE REASSIGNMENT to Judge Kenneth M. Karas. Judge Harold Baer no longer assigned to the case. (jjm, ) (Entered: 09/15/2004)

Sept. 3, 2004

Sept. 3, 2004

Mailed notice with Rules 2 & 3 to the attorney(s) of record. (jjm, ) (Entered: 09/15/2004)

Sept. 15, 2004

Sept. 15, 2004

62

NOTICE of Appearance by Kristina Michele Jones on behalf of Edward McKenna (ps, ) (Entered: 10/22/2004)

Oct. 20, 2004

Oct. 20, 2004

63

LETTER addressed to counsel of record from chambers of Judge Baer dated 10/21/04 re: notifying counsel that there will be a pre-trial conference in the case at 5:00 p.m on December 2, 2004 in room 2230; (djc, ) (Entered: 10/25/2004) filed by John P. Keane, T. J. Miller, Lester N. Wright, Frank Lancellotti, Mervat Makram, All Unnamed Persons, Individuals, Officers, Civilians, Individually and in their Official Capacities. it is hereby ORDERED, ADJUDGED AND DECREED that the order of said District Court be and it hereby is AFFIRMED in accordance with the opinion of this Court. USCA Case Number 04-0492-pr. Roseann B. MacKechnie, Clerk USCA. Issued As Mandate: November 9, 2004. (dt, ) (Entered: 11/22/2004)

Oct. 21, 2004

Oct. 21, 2004

Transmission of USCA Mandate/Order to the District Judge re: [64] USCA Mandate Non-Dismissal,,. (dt, ) (Entered: 11/22/2004)

Nov. 22, 2004

Nov. 22, 2004

Costs Taxed USCA Case Number 04-0492-pr. in the amount of $310.00. Docketed as Judgment #04,2108 on 11/22/04 in favor of Plaintiff, Edward McKenna against Defendants-Appellants, Lester N. Wright, et al. (Original Document attached to U.S.C.A. Mandate Doc. #64. (dt, ) (Entered: 11/22/2004)

Nov. 22, 2004

Nov. 22, 2004

65

NOTICE of Appearance by Mary Alestra on behalf of Edward McKenna (jp, ) (Entered: 11/24/2004)

Nov. 22, 2004

Nov. 22, 2004

66

ENDORSED LETTER addressed to Judge Karas from John E. Knudsen dated 11/23/2004 re: The application is granted. Defendants' answer is now due on 12/20/2004. No further extensions will be granted. The parties are directed to appear for a conference on 1/5/05 at 11:00am. (Signed by Judge Kenneth M. Karas on 11/29/2004) (jsa, ) (Entered: 12/01/2004)

Nov. 30, 2004

Nov. 30, 2004

Set Answer Due Date re: [37] Amended Complaint, as to All Unnamed Persons, Individuals, Officers, Civilians, Individually and in their Official Capacities answer due on 12/29/2004; Gleen S. Goord answer due on 12/29/2004; John P. Keane answer due on 12/29/2004; Frank Lancellotti answer due on 12/29/2004; Mervat Makram answer due on 12/29/2004; T. J. Miller answer due on 12/29/2004; Lester N. Wright answer due on 12/29/2004. (jsa, ) (Entered: 12/01/2004)

Nov. 30, 2004

Nov. 30, 2004

Set/Reset Hearings: Pretrial Conference set for 1/5/2005 11:00 AM before Judge Kenneth M. Karas. (jsa, ) (Entered: 12/01/2004)

Nov. 30, 2004

Nov. 30, 2004

67

ANSWER to Complaint. Document filed by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Mervat Makram.(jmi, ) (Entered: 01/04/2005)

Dec. 30, 2004

Dec. 30, 2004

68

AMENDED CASE MANAGEMENT PLAN:All Fact Discovery due by 4/5/2005. Next Case Management Conference set for 5/20/2005 10:30 AM before Judge Kenneth M. Karas. Additional discovery deadlines are as set forth in this Order. (Signed by Judge Kenneth M. Karas on 1/5/05) (pl, ) Modified on 1/13/2005 (pl, ). (Entered: 01/13/2005)

Jan. 6, 2005

Jan. 6, 2005

Appeal Record Returned. Indexed record on Appeal Files for [55] Notice of Interlocutory Appeal, filed by John P. Keane,, T. J. Miller,, Lester N. Wright,, Frank Lancellotti,, Mervat Makram,, All Unnamed Persons, Individuals, Officers, Civilians, Individually and in their Official Capacities, USCA Case Number 04-0492-pr, returned from the U.S. Court of Appeals. (pr, ) (Entered: 01/31/2005)

Jan. 28, 2005

Jan. 28, 2005

69

ENDORSED LETTER addressed to Judge Kenneth M. Karas from John E. Knudsen dated 3/3/05 re: Application GRANTED. The parties are given until 4/19/05 to complete fact discovery. (Signed by Judge Kenneth M. Karas on 3/4/05) (db, ) (Entered: 03/10/2005)

March 8, 2005

March 8, 2005

Set/Reset Deadlines: Discovery due by 4/19/2005. (db, ) (Entered: 03/10/2005)

March 8, 2005

March 8, 2005

70

SECOND AMENDED SCHEDULING ORDER: Motions due by 5/9/2005. Discovery due by 6/10/2005. See Document for further Scheduling Deadlines. (Signed by Judge Kenneth M. Karas on 4/25/05) (sac, ) (Entered: 05/02/2005)

April 27, 2005

April 27, 2005

71

NOTICE of Appearance by Jeffrey P. Wade on behalf of Edward McKenna (pf, ) (Entered: 05/05/2005)

May 3, 2005

May 3, 2005

72

MOTION for an order, compelling defendants to respond to plaintiff's discovery requests; and for an order, awarding to plaintiff the reasonable expenses of this motion, including attorney's fees. Affirmation of Mary F. Alestra in support attached. Document filed by Edward McKenna. Received in the night deposit box on 5/9/05 at 10:57 p.m.. (sac, ) (Entered: 05/10/2005)

May 9, 2005

May 9, 2005

73

MEMORANDUM OF LAW in Support re: [72] MOTION to Compel. Document filed by Edward McKenna. Received in the night deposit box on 5/9/05 at 10:57 p.m.. (sac, ) (Entered: 05/10/2005)

May 9, 2005

May 9, 2005

74

STIPULATION AND ORDER this action that the following terms and conditions shall govern the physical examination of plaintiff Edward McKenna to be conducted by the parties' respective physician experts as further set forth in this Stipulation. (Signed by Judge Kenneth M. Karas on 5/16/05) (jco, ) (Entered: 05/25/2005)

May 23, 2005

May 23, 2005

75

ENDORSED LETTER addressed to Judge Kenneth M. Karas from Mary F. Alestra dated 5/20/05 re: Counsel writes to request a brief extension to the expert discovery schedule as follows: plaintiff expert report served on defendants on or before 5/31/05; deposition of plaintiff's expert shall be completed by 6/9/05; defendants' expert report shall be served on plaintiff on or before 6/10/05; and any depositions of defendants' expert by plaintiff shall be completed by 6/21/05. So Ordered. (Signed by Judge Kenneth M. Karas on 5/20/05) (jco, ) (Entered: 05/25/2005)

May 23, 2005

May 23, 2005

76

ORDER that counsel who will try the case appear for a status conference on 6/28/05 at 11:00 a.m. in 500 Pearl Street courtroom 21D. (Signed by Judge Kenneth M. Karas on 5/25/05) (dle, ) (Entered: 05/27/2005)

May 27, 2005

May 27, 2005

Set/Reset Hearings: Status Conference set for 6/28/2005 11:00 AM before Judge Kenneth M. Karas. (dle, ) (Entered: 05/27/2005)

May 27, 2005

May 27, 2005

77

ENDORSED LETTER addressed to Judge Kenneth M. Karas from John E. Knudsen dated 5/26/05 re: The revised schedule for the motion to compel discovery is approved - defendants response due 6/1/05, reply due 6/8/05. (Signed by Judge Kenneth M. Karas on 5/27/05) (db, ) (Entered: 06/02/2005)

June 1, 2005

June 1, 2005

Set/Reset Deadlines as to [72] MOTION to Compel. Responses due by 6/1/2005 Replies due by 6/8/2005. (db, ) (Entered: 06/02/2005)

June 1, 2005

June 1, 2005

78

MEMORANDUM OF LAW in Opposition re: [72] MOTION to Compel. Document filed by Lester N. Wright, John P. Keane, T. J. Miller, Frank Lancellotti, Gleen S. Goord, Mervat Makram, All Unnamed Persons, Individuals, Officers, Civilians, Individually and in their Official Capacities. (sac, ) (Entered: 06/06/2005)

June 3, 2005

June 3, 2005

79

REPLY MEMORANDUM OF LAW in Support re: [72] MOTION to Compel.. Document filed by Edward McKenna. (dle, ) (Entered: 06/14/2005)

June 8, 2005

June 8, 2005

80

AFFIRMATION of Mary F. Alestra in Support re: [72] MOTION to Compel.. Document filed by Edward McKenna. (dle, ) (Entered: 06/14/2005)

June 8, 2005

June 8, 2005

81

ORDER that upon the agreement of te parties, plaintiff will be transported to Westchester Medical Center for a medical exam by dfts' expert on or around 6/9/05. (Signed by Judge Kenneth M. Karas on 6/7/05) (dle, ) (Entered: 06/15/2005)

June 10, 2005

June 10, 2005

82

STIPULATION AND ORDER that the IGRC at Woodbourne Correctional Facility consists of two voting inmates, two voting Woodbourne staff members, and a nonvoting chairperson. The IGRC is responsible for resolving inmate grievances or making recommendations for the resolution of such grievances, purs. to New York State LaW. (Signed by Judge Kenneth M. Karas on 6/23/05) (dle, ) (Entered: 06/28/2005)

June 28, 2005

June 28, 2005

83

ENDORSED LETTER addressed to Judge Karas from John E. Knudsen dated 6/21/05 re: request for an extension of expert discovery. The deposition of defendant's expert shall be conducted by 7/15/2005. (Signed by Judge Kenneth M. Karas on 6/22/05) (yv, ) (Entered: 06/28/2005)

June 28, 2005

June 28, 2005

84

STIPULATION AND ORDER. Parties reserve the right to challenge the admission as evidence of Exhibit A on all other grounds, including relevance. The parties do not waive the right to call Dr. Rodgers as a witness at trial or to challenge his being called on relevance or other grounds (Signed by Judge Kenneth M. Karas on 6/23/05) (yv, ) (Entered: 06/28/2005)

June 28, 2005

June 28, 2005

85

STIPULATION AND ORDER. Both parties reserve the right to challenge the admission as evidence of any of the documents further set forth in this Order on all other grounds, including relevance (Signed by Judge Kenneth M. Karas on 6/23/05) (yv, ) (Entered: 06/28/2005)

June 28, 2005

June 28, 2005

86

STIPULATION; that during the period from 1999 through 2003, there were no protocols, policies, or guideliness in effect at Woodbourne Correctional Facility that specifically discussed Hepatitis C other than the Department of Corrections' Heppatitis C Primary Care Practice Guidelines, and the DOCS protocols relating to blood-borne pathogens, versions of which bear production numbers MCD 3138-3188, MCD 3458-3502, and MCD 3525-3527. (Signed by Judge Kenneth M. Karas on 6/23/05) (sac, ) (Entered: 06/29/2005)

June 28, 2005

June 28, 2005

Case Details

State / Territory: New York

Case Type(s):

Prison Conditions

Special Collection(s):

Hepatitis C

Key Dates

Filing Date: July 19, 2001

Closing Date: 2005

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Male inmate at the New York Department of Correctional Services' Green Haven Correctional Facility who was diagnosed with the Hepatitis C virus and later with cirrhosis of the liver.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: Yes

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Department of Correctional Services, State

Case Details

Causes of Action:

42 U.S.C. § 1983

Constitutional Clause(s):

Due Process

Availably Documents:

Trial Court Docket

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Damages

Source of Relief:

Settlement

Form of Settlement:

Court Approved Settlement or Consent Decree

Issues

Affected Gender:

Male

Medical/Mental Health:

Hepatitis

Medication, administration of

Type of Facility:

Government-run