Mowatt v. Nassau County Correctional Center

Filing 13

ORDER - In an abundance of caution and given Plaintiff's pro se status, the Court affords Plaintiff a final opportunity to amend his Complaint, and shall be filed within thirty (30) days from the date of this Order. The Clerk of the Court shal l mail a copy of this Order to Plaintiff at his address of record. 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. So Ordered by Judge Joanna Seybert on 1/8/2021. C/M (Valle, Christine)

Case 2:20-cv-03890-JS-AKT Document 13 Filed 01/08/21 Page 1 of 4 PageID #: 64

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
TOREY MOWATT,
Plaintiff,

ORDER
20-CV-3890(JS)(AKT)

-againstNASSAU COUNTY CORRECTIONAL CENTER,
Defendant.
-----------------------------------X
APPEARANCES
For Plaintiff:

Torey Mowatt, pro se
679138
Suffolk County Correctional Facility
110 Center Drive
Riverhead, New York 11901 1

For Defendant:

No appearances.

SEYBERT, District Judge:
By Memorandum and Order dated November 19, 2020, the
Court

granted

the

applications

filed

by

incarcerated

pro

se

plaintiff Torey Mowatt (“Plaintiff”) to proceed in forma pauperis
Although Plaintiff filed these Complaints while he was
incarcerated at the Nassau County Correctional Center, he was
subsequently transferred to the Suffolk County Correctional
Facility. (See Notice of Change of Address filed in Case No.
20-CV-3890 only, ECF No. 9.) Accordingly, as a one-time
courtesy, the Court updated Plaintiff’s address and instructed
Plaintiff that, “should his address change, he is required to
update his address with the Court.” (Memo & Order, ECF No. 10
at 1-2 n.1.) By letter dated December 14, 2020, Sergeant Greg
Lambert notified the Court that Plaintiff was discharged from
the Suffolk County Correctional Facility on December 3, 2020.
(See ECF No. 12.) To date, Plaintiff has not updated his
address, nor has he otherwise communicated with the Court.
1

1

Case 2:20-cv-03890-JS-AKT Document 13 Filed 01/08/21 Page 2 of 4 PageID #: 65

in each of the three civil rights Complaints filed in this Court
against

the

Nassau

County

Correctional

(See Memo & Order, ECF No. 10.)

Center

(“Defendant”). 2

The Court also consolidated

Plaintiff’s Complaints pursuant Federal Rule of Civil Procedure 42
and dismissed his claims pursuant to 28 U.S.C. §§ 1915(e)(2)(B),
1915A(b).

Plaintiff

was

granted

leave

to

file

an

Amended

Complaint within thirty (30) days from the date of the November
19, 2020 Memorandum and Order.

(See Memo & Order at 16.)

To date, Plaintiff has not filed an Amended Complaint
nor has he otherwise communicated with the Court.

Although the

Court has learned that Plaintiff was discharged from the Suffolk
County Correctional Facility on December 3, 2020 (see ECF No. 12),
Plaintiff has not updated his address with the Court despite being
reminded to do so.

(See Memo & Order at 1-2 n.1 (“Plaintiff is

reminded that, should his address change, he is required to update
his address with the Court.” (emphasis added)).)

Moreover, the

Court’s November 19, 2020 Memorandum and Order, which was sent to
Plaintiff at the Suffolk County Correctional Facility, has not
been returned to the Court as undeliverable.

Dunn v. Albany Med.

Coll., 445 F. App’x 431, 432 (2d Cir. 2011) (“Our precedent makes

The Court consolidated the cases assigned Case Numbers 20-CV3889 and 20-CV-3891 into this case.
2

2

Case 2:20-cv-03890-JS-AKT Document 13 Filed 01/08/21 Page 3 of 4 PageID #: 66

clear,

however,

that

where

the

record

shows

that

a

properly

addressed piece of mail was placed in the care of the Postal
Service, that piece of mail ‘is presumed to have been delivered.’”
(quoting Hoffenberg v. Comm’r, 905 F.2d 665, 666 (2d Cir. 1990));
Miner v. Clinton Cty., N.Y., 541 F.3d 464, 472 (2d Cir. 2008)
(letters sent by first class mail, having not been returned as
undeliverable, are presumed to “have been delivered to the correct
address”).

Thus, Plaintiff is presumed to have received the

Court’s November 19, 2020 Memorandum and Order which, among other
things, informed him of (1) his right to file an amended complaint
within thirty days from November 19th and (2) of the requirement
to update his address with the Court should his address change.
In an abundance of caution and given Plaintiff’s pro se
status, the Court affords Plaintiff a final opportunity to amend
his Complaint.

Any Amended Complaint shall be clearly labeled

“Amended Complaint”, shall bear only the Case Number of this
Consolidated

Action,

20-CV-3890(JS)(AKT),

and

shall

within thirty (30) days from the date of this Order.

be

filed

Plaintiff

is cautioned that an Amended Complaint completely replaces the
original.
against

Therefore, Plaintiff must include any and all claims

any

Complaint,

Defendant(s)
should

he

he

elect

seeks
to
3

to

file

pursue
an

in

Amended

the

Amended

Complaint.

Case 2:20-cv-03890-JS-AKT Document 13 Filed 01/08/21 Page 4 of 4 PageID #: 67

Plaintiff shall also update his address with the Court.

If

Plaintiff fails to file an Amended Complaint within the time
allowed, absent a showing of good cause, the Clerk of Court shall
enter judgment in accordance with the November 19, 2020 Memorandum
and Order, and this case will be closed.
The Clerk of the Court shall mail a copy of this Order
to Plaintiff at his address of record.

Although it is unlikely

that

at

this

Order

will

reach

Plaintiff

the

Suffolk

County

Correctional Facility, this Order will also be posted on the
Court’s Electronic Case Filing System, and it is possible that
Plaintiff may view it there.
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).

SO ORDERED.
/s/ JOANNA SEYBERT_____
Joanna Seybert, U.S.D.J.
Dated:

January 8 , 2021
Central Islip, New York

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