Land v. Spizzota et al

Filing 12

MEMORANDUM AND ORDER - In light of Plaintiff's pro se status, the Court GRANTS Plaintiff a final opportunity to file an Amended Complaint in accordance with the guidance set forth in the Order not later that November 10, 2014. The Court certifie s 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 purpose of any appeal. The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 10/9/2014. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
DENNIS LAND,
Plaintiff,

MEMORANDUM & ORDER
14-CV-3175(JS)(ARL)

-against“JOHN/JANE DOE”,
Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
Dennis Land, pro se
117 Jefferson Street
Inwood, NY 11096
For Defendant:

No appearance.

SEYBERT, District Judge:
On May 19, 2014, then-incarcerated pro se plaintiff
Dennis Land (“Plaintiff”) filed a Complaint in this Court pursuant
to 42 U.S.C. § 1983 (“Section 1983”) against Michael Sposato and
“Medical Staff”, accompanied by an application to proceed in forma
pauperis.
By

Memorandum

and

Order

dated

August

5,

2014

(the

“Order”), the undersigned granted the application to proceed in
forma pauperis, but sua sponte dismissed the pro se Complaint with
leave to file an Amended Complaint by September 5, 2014.
On August 26, 2014, Plaintiff timely filed an Amended
Complaint against “John/Jane Doe” (“Defendant”).

The Amended

Complaint does not, however, allege any facts in support of
Plaintiff’s

Section

1983

claim

against

Defendant.

Rather,

Plaintiff’s Statement of Claim alleges, in its entirety, that

“[t]he facts are stated in Background of Memorandum.”1

(Am.

Compl., Docket Entry 10, ¶ IV.)
Given that the Amended Complaint does not set forth any
facts or claims against Defendant, it fails to allege a plausible
claim for relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

1937, 173 L. Ed. 2d 868 (2009) (“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct
specific

alleged”);
pleading

indifference claim).

see

also

Order,

deficiencies

in

at

6-8

(setting

Plaintiff’s

forth

deliberate

In light of Plaintiff’s pro se status, the

Court GRANTS Plaintiff a final opportunity to file an Amended
Complaint in accordance with the guidance set forth in the Order
not later that November 10, 2014.

See Order, at 6-9.

Plaintiff is

again instructed that the Amended Complaint shall be clearly
labeled “Second Amended Complaint” and shall bear docket number 14CV-3175(JS)(ARL).
identify

the

In the Second Amended Complaint, Plaintiff must

individual

who

was

personally

involved

in

the

challenged conduct. If Plaintiff cannot identify the individual in
the time allowed, he may designate the Defendant as “John/Jane Doe”
in the caption and in the body of the Second Amended Complaint,
along with descriptive information (including the date, time, and

1

The Court presumes that Plaintiff is referring to the Order.
2

location of their interaction).
Plaintiff’s Second Amended Complaint will replace his
original

and

Amended

Complaint.

Therefore,

all

claims

and

allegations Plaintiff wishes to pursue should be included in his
Second Amended Complaint.

If Plaintiff fails to file a Second

Amended Complaint bu November 10, 2014, his Complaint shall be
DISMISSED WITH PREJUDICE.
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 purpose of
any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is further directed to mail a copy
of this Memorandum and Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: October
9 , 2014
Central Islip, New York

3