UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami Division. CIVIL NO.: Civ-Altonaga

Transcription

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami Division CIVIL NO.: Civ-Altonaga JOHN RAMOS, vs. Plaintiff, COUNTY OF MIAMI DADE, JOSE ARAGU, Individually, DENNIS LOPEZ, Individually, ANTHONY RODRIGUEZ, JOSE LUIS, Individually, JOHN VILLAR, Individually and RADESH MAHARAJ, Individually, Defendants. / PLAINTIFF JOHN RAMOS MOTION TO ENLARGE TIME TO FILE RESPONSE IN OPPOSITIONN TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT COMES NOW, the Plaintiff JOHN RAMOS ( Plaintiff ), by and through his undersigned counsel, who files this, his Motion to enlarge time to file his Response in Opposition and supporting documents to Defendants motion for summary judgment, and in support thereof states the following: 1. Prior to commencement of the instant federal civil rights case, Miami Dade Police Department s Internal Affairs Division ( IAD ) opened an internal

2 investigation into the beating of Plaintiff by Defendants JOSE ARAGU, DENNIS LOPEZ, ANTHONY RODRIGUEZ, JOSE LUIS, JOHN VILLAR and RADESH MAHARAJ (hereinafter collectively referred to as Defendants ). During the course of this internal investigation, the Miami Dade Internal Affairs detectives interviewed numerous witnesses, including Plaintiff. In fact, the day after the beating of Plaintiff by Defendants, the Miami Dade 2. In December, 2012, Plaintiff served a subpoena duces tecum on the Miami Dade Police Dept., seeking copies of the internal affairs investigation relating to the beating of Plaintiff by Defendants an investigation file which includes statements made by witnesses, colored photos of Plaintiff s injuries the day after the beating, the police baton used to beat Plaintiff and other documents and information. The Miami Dade Police Dept. refused to comply with the subpoena, citing the continued IAD investigation under review by the State Attorney s Office for purposes of criminal prosecution. 3. Defendants filed their motion for summary judgment, seeking to dismiss the Plaintiff s federal civil rights complaint. DE# 84. The Defendants submitted nine (9) exhibits in support of their motion for summary judgment, some of which were declarations executed by the individual Defendants claiming they never hit, struck, assaulted, beat or injured Plaintiff. DE# 85. Simply put, Defendants deny Plaintiff s federal civil rights claims in their entirety. Plaintiff s 2

3 response to Defendants motion for summary judgment is required to be filed no later than January 22, On or about January 9, 2013, the undersigned counsel was informed that the State Attorney assistant prosecutor assigned to the case made a final decision not to seek criminal charges against the Defendants on that very day. In so doing, the assistant prosecutor had stated on January 9, 2013 the following: (1) Defendant JOHN VILLAR had been cooperating with the IAD detectives during the course of the IAD investigation, (2) JOHN VILLAR admitted to his involvement in the beating of the Plaintiff, (3) JOHN VILLAR provided the location where the police night stick or baton used to beat Plaintiff was located, (4) the IAD detectives located and seized the police baton, and (4) JOHN VILLAR provided information relating to the involvement of certain Defendants in the beating of Plaintiff. 5. Further, the State Attorney assistant prosecutor stated until the supervisors approve of his final decision to not seek criminal charges against the Defendants, the investigation file would not be released or available for review. 6. In light of the disclosure of the information by the State Attorney assistant prosecutor, Plaintiff has scheduled the taking of JOHN VILLAR s deposition on January 22, 2013 at 9:00am. The Martin CI correctional officials have permitted Plaintiff to use their facility to take the deposition of JOHN 3

4 VILLAR on the aforementioned date. The correctional officials informed Plaintiff that there was no other earlier day available to take the deposition of JOHN VILLAR. It is the intention of Plaintiff to use JOHN VILLAR s testimony, at this stage of the proceedings and at trial, to establish that the Defendants did in fact conspire to violate Plaintiff s civil rights as described throughout the amended civil rights complaint. 7. Plaintiff now moves this Court for an enlargement of time to file Plaintiff s response in opposition, together with supporting evidence to Defendants motion for summary judgment to and including January 31, The Plaintiff has not been allowed access to any information from the IAD file or State Attorney s office as of this date. It is imperative that this Court have the testimony of John Villar detailing the manner and method of the beating of Plaintiff at the hands of certain Defendants during the Court s review of the Defendants pending motion for summary judgment. 9. Federal courts have excused a party s unintentional failure to meet a court ordered deadline where the failure is unintentional. See Cheney v. Anchor Glass Container Corp., 71 F.3d 858 (11 th Cir. 1996). The deadline for Plaintiff to file his response in opposition to the Defendants motion for summary judgment is January 22, Plaintiff request to January 31, 2012 should not impact the trial setting or other proceedings already scheduled in the instant case. 4

5 10. Plaintiff files the instant motion in good faith and not for the purpose of delay. By this Court granting the enlargement of time for Plaintiff to file his Response in opposition to the Defendants pending motion for summary judgment, the interests of justice would be served by allowing all triable issues and material evidence to be reviewed by this Court at one time. LOCAL RULE 7.1(A)(3) CERTIFICATION Pursuant to Local Rule 7.1(A)(3), undersigned counsel for Plaintiff certifies that he has conferred with Defendants in a good faith effort to resolve the issues raised in this motion, and that Defendants have indicated that they do not oppose the relief requested. * * * * * * 5

6 WHEREFORE, the Plaintiff, JOHN RAMOS, requests this Court to grant the instant motion based on the foregoing facts and law; and enter an order extending the time for Plaintiff to file his response and supporting documents and evidence to Defendants motion for summary judgment to and including January 31, Plaintiff requests other relief this Court deems proper and just under the circumstances. January 16, 2013 Miami, Florida. Respectfully submitted, //ss// William M. Norris WILLIAM M. NORRIS William M. Norris, P.A. Florida Bar No.: SW 62nd Terrace Miami, Florida Telephone: (305) Facsimile: (305) Attorney for Plaintiff. 6

7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 16th day of January, 2013, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system. I also certify that the foregoing document is being served this day on all counsel of record and pro se parties identified below in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. Rhea Pincus Grossman Erica Sunny Shultz Zaron 2650 W State Road 84 Miami-Dade County Attorney's Suite 103 Office Fort Lauderdale, FL N.W. 1st Street Tel: Suite 2810 Fax: Miami, FL rheagrossman@comcast.net Tel: Fax: zaron@miamidade.gov //ss// William M. Norris WILLIAM M. NORRIS 7