10-1250-pr
         Cabassa v. Smith
                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of May, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                         Circuit Judges,
 9                J. GARVAN MURTHA,*
10                         District Judge.
11
12       SAMUEL CABASSA,
13
14                                     Plaintiff-Appellant,
15
16                      v.                                           10-1250-pr
17
18       JOSEPH SMITH, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL
19       FACILITY, ANTHONY FORTE, CHIEF MEDICAL DOCTOR, SHAWANGUNK
20       CORRECTIONAL FACILITY, LESTER N. WRIGHT, DEPUTY
21       COMMISSIONER, CHIEF MEDICAL OFFICER, NEW YORK STATE
22       DEPARTMENT OF CORRECTIONAL SERVICES, LEONARDO PORTUONDO,
23       SUPERINTENDENT, MARYANN GENOVESE, MEDICAL DOCTOR, RICHARD
24       WURZEL, KATZ, DOCTOR, THOMAS EAGEN, DIRECTOR, INMATE
25       GRIEVANCE PROGRAM,
26
27                                     Defendants-Appellees.
28
29
30
31


                *
                The Honorable J. Garvan Murtha, of the United States
         District Court for the District of Vermont, sitting by
         designation.
1    FOR APPELLANT:     GINA R. MERRILL (Philip A. Irwin, on the
2                       brief), Covington & Burling LLP, New
3                       York, NY
4
5    FOR APPELLEES:     UNOPPOSED
6
7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

8    AND DECREED that the judgment of the United States District

9    Court for the Northern District of New York is VACATED and

10   REMANDED.

11       Plaintiff-Appellant Samuel Cabassa appeals from the

12   judgment of the United States District Court for the

13   Northern District of New York (Hood, J.), granting summary

14   judgment to the appellees and dismissing Cabassa’s

15   complaint.   On March 9, 2011, this Court granted Cabassa's

16   motion for appointment of counsel with respect to his Eighth

17   Amendment claim against Defendant-Appellee Richard Wurzel,

18   and dismissed the appeal with respect to his remaining

19   claims against all other appellees.   On October 17, 2011,

20   the New York State Attorney General’s Office (“NYAG”)

21   informed the Court that it would not be filing a brief on

22   Wurzel's behalf despite the fact that it filed a notice of

23   appearance on behalf of all defendants-appellees on appeal

24   and acknowledged in a letter that it represented him below.

25   The NYAG asserts that Wurzel was never served below, that it



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1    does not represent Wurzel, and that it mistakenly filed a

2    notice of appearance on his behalf on appeal.     As such,

3    Cabassa’s appeal against Wurzel is currently unopposed.

4        In light of the representations made by the NYAG, we

5    VACATE the judgment with respect to Wurzel and REMAND to the

6    district court for a determination as to whether he was ever

7    served and any appropriate remedies that may arise

8    therefrom.     The Court expresses its thanks to Cabassa’s pro

9    bono counsel for their dedicated and highly professional

10   assistance.     We recommend that the district court consider

11   whether to extend their appointment in subsequent

12   proceedings.

13
14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17




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