Opinion
21 CV 203 (VBV)
08-16-2021
DAVID WOODS, Plaintiff, v. JOHN OR JANE DOE, M.D., SUPERINTENDENT, Downstate Correctional Facility, Defendants.
ORDER
Vincent L. Briccetti, United States District Judge
On March 30, 2021, the Court issued an Order of Service. (Doc. #7). Among other things, the Order instructed plaintiff, who is proceeding pro se and in forma pauperis, to provide the New York State Office of the Attorney General (“NYAG”) with more detailed, descriptive information for the unidentified “John or Jane Doe” defendant he intended to sue in this case, including the date on which that defendant observed plaintiff at Downstate Correctional Facility, to assist the NYAG in properly identifying that defendant pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997). (Id.). The Court instructed plaintiff to provide this information by April 29, 2021. (Id.). The Clerk of Court mailed a copy of this Order to plaintiff. (Doc. #9).
By letter dated June 9, 2021, the NYAG informed the Court that plaintiff had not provided the NYAG with additional information regarding the identity defendant “John or Jane Doe, M.D., ” or the date on which the alleged incident occurred. (Doc. #14). In other words, it appeared plaintiff had failed to comply with the Court's March 30, 2021, Order.
Thus, by Order dated June 9, 2021, the Court instructed plaintiff to write a letter to the Court and to the NYAG providing the following information by no later than July 9, 2021:
a. more detailed, descriptive information for the unidentified “John or Jane Doe” defendant he intended to sue in this case, including the date on which that defendant observed plaintiff at Downstate Correctional Facility, to assist the NYAG in properly identifying that defendant, and
b. the dates on which the incidents alleged in the complaint occurred.
The Court noted in bold and underlined typeface that if plaintiff failed to provide the above information by July 9, 2021, both to the Court and to the NYAG, the Court may dismiss this case in part or in full for failure to prosecute or comply with Court Orders. (Doc. #16). The Court mailed a copy of this Order to plaintiff. (Id.).
To date, plaintiff has not submitted this letter to the Court, meaning he has not complied with the June 9, 2021, Court Order. This is the second Court Order plaintiff has failed to comply with.
In addition, on July 12, 2021, defendant Superintendent of Downstate Correctional Facility moved to dismiss plaintiff's complaint and served on plaintiff copies of the motion and supporting document in person. (Docs. ##18, 19-1). Plaintiff's opposition to the motion was due July 29, 2021. See Local Civil Rule 6.1(b); Fed.R.Civ.P. 6(d).
To date, plaintiff has failed to oppose the motion or seek an extension of time to do so.
In addition, since filing a change of address notice dated March 29, 2021, noting he was incarcerated at Cape Vincent Correctional Facility, plaintiff has not sent any communication to the Court. (Doc. #10). The New York State DOCCS inmate lookup indicates that plaintiff is still incarcerated at Cape Vincent Correctional Facility. Moreover, none of the Court Orders mailed to plaintiff were returned to sender as undeliverable.
Accordingly, it is HEREBY ORDERED:
1. The Court sua sponte extends to September 16, 2021, plaintiff's time to (i) provide the additional information necessary to identify defendant “John or Jane Doe, M.D., ” and (ii) oppose the motion to dismiss.
2. If plaintiff provides additional information to identify the John Doe defendants, by thirty days after plaintiff provides the above information, the NYAG, pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997), shall identify the defendant(s) whom plaintiff sought to sue and the address where this defendant(s) may be served, and provide this information to plaintiff and the Court.
3. If by September 16, 2021, plaintiff fails to provide the information necessary to identify defendant “John or Jane Doe, M.D.” by sending a letter to the Court and the NYAG the Court WILL dismiss all claims against defendant “John or Jane Doe, M.D.” for failure to comply with Court Orders. See Fed.R.Civ.P. 41(b). To be clear, this information plaintiff must provide in his letter is listed on page one of this order as paragraphs (a) and (b).
4. If plaintiff opposes the motion, defendants' reply, if any, shall be due September 30, 2021.
5. If by September 16, 2021, plaintiff fails to respond to the pending motion to dismiss or otherwise seek an extension of time to do so, the Court WILL dismiss this case against defendant Superintendent of Downstate Correctional Facility for failure to prosecute. See Fed.R.Civ.P. 41(b).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purposes of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Chambers will mail a copy of this Order to plaintiff at the address on the docket.