Rodriguez v. Griffin et al

Filing 24

DECISION AND ORDER: ORDERED that plaintiff's amended complaint (Dkt. No. 11 ) is deemed amended to include the additional factual allegations regarding exhaustion of administrative remedies identified by the Second Circuit in the Mandate (see footnote 1) and, as so amended, is the operative pleading in this action. ORDERED that the Clerk shall issue summonses and forward them, along with copies of the amended complaint, to the United States Marshal for service on the named defendants. The Clerk shall forward a copy of the summons and amended complaint to the Office of the New York Attorney General, together with a copy of this Decision and Order. ORDERED that a response to the amended complaint shall be filed by defendants or the ir counsel as provided for in the Federal Rules of Civil Procedure. ORDERED that plaintiff take reasonable steps through discovery to ascertain the identity of unidentified "Doe" defendants. Signed by U.S. District Judge Mae A. D'Agostino on 2/15/17. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JOSE RODRIGUEZ,
Plaintiff,
9:15-CV-0610
(MAD/TWD)

v.
THOMAS GRIFFIN; et al.,
Defendants.

APPEARANCES:
JOSE RODRIGUEZ
96-A-0803
Plaintiff, pro se
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, NY 12589
MAE A. D'AGOSTINO
United States District Judge
DECISION and ORDER
In a Summary Order issued as a Mandate on January 17, 2017, the United States
Court of Appeals for the Second Circuit concluded that plaintiff Jose Rodriguez should have
been afforded "an opportunity for further amendment" of his amended complaint prior to
dismissal. Dkt. No. 23 ("Mandate") at 3. The Second Circuit further concluded that in light of
additional factual allegations submitted through appellate counsel regarding exhaustion of
administrative remedies, the claims asserted in plaintiff's amended complaint appear to have
been timely filed. Id. at 3 n.4.1 The Second Circuit vacated the Judgment of dismissal and

1

The Second Circuit identified those additional factual allegations as follows:
[O]n August 20, 2013, Rodriguez filed an administrative grievance and the
grievance committee thereafter recommended a determination in his favor;

remanded the action to this Court for "such further proceedings as may be appropriate in light
of this Order." Id. at 3.
Upon review, and in light of plaintiff's status as a pro se litigant, the Court hereby
deems plaintiff's amended complaint (Dkt. No. 11) amended to include the additional factual
allegations regarding exhaustion of administrative remedies identified by the Second Circuit
in the Mandate (see footnote 1). The amended complaint, as so amended, is the operative
pleading in this action. The Clerk is directed to issue summonses and forward them to the
U.S. Marshal, together with copies of the amended complaint, for service on the defendants.
This is not a ruling on the merits of plaintiff's claims and the Court expresses no opinion as to
whether plaintiff’s claims can withstand a properly filed dispositive motion.
III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's amended complaint (Dkt. No. 11) is deemed amended to

include the additional factual allegations regarding exhaustion of administrative remedies
identified by the Second Circuit in the Mandate (see footnote 1) and, as so amended, is the
operative pleading in this action; and it is further
ORDERED that the Clerk shall issue summonses and forward them, along with copies
of the amended complaint, to the United States Marshal for service on the named
defendants. The Clerk shall forward a copy of the summons and amended complaint to the
Office of the New York Attorney General, together with a copy of this Decision and Order;

Eastern's superintendent, however, then denied Rodriguez's grievance, and that
decision was upheld by a review committee on April 6, 2014.
Mandate at 3 n.4 ("Were Rodriguez to include such allegations in an amended complaint, his claims, as alleged,
would be timely.").

2

and it is further
ORDERED that a response to the amended complaint shall be filed by defendants or
their counsel as provided for in the Federal Rules of Civil Procedure; and it is further
ORDERED that plaintiff take reasonable steps through discovery to ascertain the
identity of unidentified "Doe" defendants; and it is further
ORDERED that all pleadings, motions and other documents relating to this action must
bear the case number assigned to this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Plaintiff must comply with all requests by the Clerk's Office
for any documents that are necessary to maintain this action. All parties must comply with
Local Rule 7.1 of the Northern District of New York in filing motions; motions will be decided
on submitted papers, without oral argument, unless otherwise ordered by this Court. Plaintiff
is also required to promptly notify the Clerk's Office and all parties or their counsel, in
writing, of any change in his address; his failure to do so will result in the dismissal of
this action; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: February 15, 2017
Albany, NY

3