Gutek v. The People of The State of New York
DECISION AND ORDER: ORDERED, that the amended complaint (Dkt. No. 9 ) is accepted for filing and is deemed the operative pleading. ORDERED that the Office of the County Attorney for Broome County is hereby requested to produce the information spec ified above, to the extent that it can, regarding the identity of the defendants within thirty (30) days of the filing date of this Decision and Order. The information should be sent to the Clerk of the Court for the Northern District of New York a long with a copy of this Decision and Order, as well as to plaintiff at his address of record. Once this information is provided, the Clerk shall return this file to the Court for furtherreview. Signed by Judge Brenda K. Sannes on 8/11/17. ( Case Review Deadline 9/11/2017) (served on plaintiff by regular mail; served on the County Attorney for Broome County with a copy of the amended complaint by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANTHONY DENNIS GUTEK,
JOHN DOE #1, et. al.,
ANTHONY DENNIS GUTEK
Plaintiff, pro se
Livingston Correctional Facility
P.O. Box 91
Sonyea, NY 14556
BRENDA K. SANNES
United States District Judge
DECISION AND ORDER
Plaintiff Anthony Dennis Gutek ("plaintiff") commenced this action by filing a pro se
civil rights complaint pursuant to 42 U.S.C. § 1983 ("Section 1983"), together with an
application to proceed in forma pauperis. Dkt. No. 1 ("Compl."), Dkt. No. 5 ("IFP
Application"). By Decision and Order filed on June 30, 2017 (the "June Order"), this Court
granted plaintiff's IFP application, but dismissed the complaint because plaintiff failed to
name, as a defendant, any individual who was personally involved in the alleged
constitutional violations. See Dkt. No. 8, generally. In light of his pro se status, plaintiff was
afforded an opportunity to submit an amended complaint. See id. Plaintiff has submitted an
amended complaint in response to the June Order. Dkt. No. 9 ("Am. Compl.").
The legal standard governing the dismissal of a pleading for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) w as discussed at length in
the June Order and will not be restated here. See Dkt. No. 8 at 2-4. Taking into account
plaintiff's pro se status, the Court construes the allegations in plaintiff's amended complaint
with the utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519, 521 (1972) (holding that
a pro se litigant's complaint is to be held "to less stringent standards than formal pleadings
drafted by lawyers.").
REVIEW OF AMENDED COMPLAINT
In the original complaint, plaintiff identified "the People of the State of New York" as
the sole defendant and alleged that he was assaulted by five unidentified officers in his cell at
the Broome County Jail ("Broome C.J."). Compl. at 2-3. In the June Order, the Court
dismissed plaintiff's claims.1 See Dkt. No. 8, generally. In the amended complaint, plaintiff
names four new defendants: John Doe #1 (Grievance Officer - 2014 Broome C.J.) and John
Does # 2, 3, and 4 (Rover Officers July 8, 2014 Broome C.J.). The facts set forth in the
amended complaint are largely identical in content to the allegations set forth in the original
complaint. Plaintiff realleges his excessive force claims against the aforementioned
defendants. See Am. Compl., generally. For a more complete statement of plaintiff's claims,
In the June Order, the Court dismissed plaintiff's claims against the People of the State of New
York, with prejudice. Dkt. No. 8 at 7. The amended complaint does not contain any claims against the People of
the State of New York.
reference is made to the amended complaint.
The law related to Eighth Amendment excessive force claims was discussed in the
June Order and will not be restated herein. Dkt. No. 8 at 7-9. In the June Order, the Court
dismissed plaintiff's Eighth Amendment claims reasoning that, "[a]lthough plaintiff alleges
facts that plausibly suggest that his Eighth Amendment rights were violated, his failure to
name a proper defendant requires dismissal of this claim." Dkt. No. 8 at 9. The Court noted:
In the body of the complaint, plaintiff alleges that Officer Jones
and five unidentified officers used excessive force. Compl. at
2-3. Plaintiff does not, however, identify these individuals as
defendants in the caption of his complaint, or for that matter,
anywhere in the complaint. Rule 10(a) of the Federal Rules of
Civil Procedure provides that, "the title of the complaint must
name all the parties." Fed. R. Civ. P. 10(a). A party not named
in the caption of the complaint is not a party to the action.
Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2
(W.D.N.Y. Aug. 1, 2014) (the failure to name a party in the
caption makes it "infeasible for the Court to determine which of
the individual officers mentioned in the body of the complaint
should be deemed to be defendants to which claims). "If
people are not also named in the caption of the [ ] complaint,
they will not be defendants in the case." See Whitley v.
Krinser, No. 06-CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y.
Aug. 15, 2007); Robles v. Armstrong, No. 3:03-CV-1634, 2006
WL 752857, at *1 n.1 (D. Conn. Mar. 17, 2006) ("The plaintiff
refers to John Doe/Jane Doe of the Correctional Managed
Health Care Program and John Doe/Jane Doe Members of the
Revitalization Committee in the body of the amended
complaint. Rule 10(a) of the Federal Rules of Civil Procedure
requires that all defendants be listed in the caption of the
complaint. Because the John and Jane Does are not listed in
the caption of the amended complaint, they are not defendants
and the court does not consider claims against them.").
Dkt. No. 8 at 9, n. 5
In the amended complaint, plaintiff claims that he was assaulted by John Does # 1, 2,
3, and 4 in his cell at the Broome C.J. on July 8, 2014. Dkt. No. 9 at 2-3. Plaintiff has
identified the time, location, and the amount of force used. Thus, the Court finds that
plaintiff's Eighth Amendment excessive force claims against the John Doe defendants
survive sua sponte review and require a response. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly filed motion to dismiss or for
Despite finding that a response to plaintiff's Eighth Amendment claims is required,
there is an impediment to service. In light of the June Order and this decision, the only
defendants are John Does, who have not been identified. To complicate matters, plaintiff is
no longer incarcerated at Broome C.J. In Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per
curiam), the Second Circuit held that a pro se litigant is entitled to assistance in identifying
defendants. In light of the foregoing, the Clerk of Court shall send a copy of the amended
complaint and this Decision and Order to the Office of the County Attorney for Broome
County. Pursuant to Valentin, the Court requests that the County Attorney's Office attempt to
ascertain the full name of the defendants. The County Attorney's Office is also requested, to
the extent that it is able to identify the defendants, to provide the address where the
defendants can currently be served. The County Attorney's Office need not undertake to
defend or indemnify these individuals at this juncture. This order merely provides a means
by which plaintiff may name and properly serve the defendants as instructed by the Second
Circuit in Valentin.
WHEREFORE, it is hereby
ORDERED, that the amended complaint (Dkt. No. 9) is accepted for filing and is
deemed the operative pleading; and it is further
ORDERED that the Office of the County Attorney for Broome County is hereby
requested to produce the information specified above, to the extent that it can, regarding the
identity of the defendants within thirty (30) days of the filing date of this Decision and Order.
The information should be sent to the Clerk of the Court for the Northern District of New York
along with a copy of this Decision and Order, as well as to plaintiff at his address of record.
Once this information is provided, the Clerk shall return this file to the Court for further
ORDERED that the Clerk serve a copy of this Decision and Order on the parties.
IT IS SO ORDERED.
Dated: August 11, 2017
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