Opinion
9:06-CV-438 (FJS/GHL).
June 8, 2006
MICHAEL HILL, 90-B-732, Southport Correctional Facility, Pine City, New York, Plaintiff pro se.
ORDER
Currently before the Court is Plaintiff Michael Hill's amended complaint, see Dkt. No. 8, which he filed in accordance with this Court's April 27, 2006 Order, see Dkt. No. 7.
Plaintiff filed this action on April 6, 2006. See Dkt. No. 1. In his amended complaint, Plaintiff pleads essentially the same claims as those he asserted in Hill v. Chalanor, 9:01-CV-18 (LEK/GHL) ("Action 01-CV-18"). The court dismissed that action on March 8, 2006, without prejudice to refiling, due to Plaintiff's failure to exhaust his administrative remedies. See Action 01-CV-18 at Dkt. No. 117. The parties in both actions are the same with the exception of Jim Meek and Brian Schwebler, whom Plaintiff has named as Defendants in his amended complaint in this action. Neither of these individuals were Defendants in Action 01-CV-18.
Based upon the express language in the court's March 8, 2006 Order in Action 01-CV-18 and consistent with the reasoning and holdings in Allaway v. McGinnis, 362 F. Supp. 2d 390, 393-94 (W.D.N.Y. 2005) (finding that "[d]ismissal of an action without prejudice for failure to exhaust administrative remedies, . . ., is precisely the type of termination subject to the safety net created by C.P.L.R. 205(a)" (citations omitted)), and Cole v. Miraflor, No. 02 Civ. 9981, 2006 WL 457817, *7 (S.D.N.Y. Feb. 23, 2006) (finding that the complaint was subject to dismissal because C.P.L.R. § 205(a)'s six-month tolling provision, which extends the statute of limitations for six months after an action has terminated if the action was originally timely commenced, had expired (footnotes omitted)), this Court finds that Plaintiff may proceed with this action. However, because Mr. Meek and Mr. Schwebler were not defendants in Action 01-CV-18 and Plaintiff has not set forth any allegations against these two individuals that fall within the applicable three-year statute of limitations which this Court addressed in its April 27, 2006 Order, the Court dismisses Mr. Meek and Mr. Schwebler, without prejudice, as Defendants in this action.
Accordingly, for the above-stated reasons, the Court hereby
ORDERS that Defendants Meek and Schwebler are DISMISSED WITHOUT PREJUDICE as Defendants in this action; and the Court further ORDERS that the Clerk of the Court shall issue summonses and forward them, along with copies of the amended complaint, to the United States Marshal for service upon Defendants, together with a copy of this Order. The Clerk of the Court shall also forward a copy of the summons and amended complaint, together with a copy of this Order, by mail to the Office of the Attorney General for the State of New York; and the Court further
ORDERS that Defendants or their counsel shall file a formal response to Plaintiff's amended complaint in compliance with the Federal Rules of Civil Procedure subsequent to service of process on Defendants; and the Court further
ORDERS that the parties shall file all pleadings, motions and other documents relating to this action with the Clerk of the United States District Court, Northern District of New York, James Hanley Federal Building, 7th Floor, 100 South Clinton Street, Syracuse, New York 13261-7367. A party shall accompany any paper that it sends to the Court or the Clerk of the Court with a certificate setting forth the date on which that party mailed a true and correct copy of the same to all opposing parties or their counsel. The Clerk of the Court shall return, without processing, any letter or document that the Court or the Clerk of the Court receives which does not include a certificate of service that clearly states that the party has served an identical copy of the same upon all opposing parties or their counsel. Plaintiff shall also comply with any requests of the Clerk's Office for any documents that are necessary to maintain this action. In addition, all motions must comply with this District's Local Rule 7.1, and the parties are to make any such motions returnable before the assigned Magistrate Judge on any business day with proper allowance for notice as the Rules require. The Court will decide all motions on submitted papers, without oral argument, unless the Court orders otherwise. Finally, Plaintiff is required to notify the Clerk's Office promptly of any change in his address; his failure to do so will result in the dismissal of this action; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff.
IT IS SO ORDERED.