Gutek v. The People of The State of New York

Filing 14

DECISION AND ORDER: ORDERED that the Second Amended Complaint (Dkt. No. 13 ) is ACCEPTED for filing and is the operative pleading in this action. ORDERED that the Clerk shall revise the docket to add (i) "David Parsons" as a defendant i n place of defendant "John Doe #2;" (ii) "Ronald Riquier" as a defendant in place of defendant "John Doe #3;" and (iii) "Franklin Birt" as a defendant in place of "John Doe #4." ORDERED that the Cl erk shall issue a summonses and forward them, along with copies of the Second Amended Complaint, to the United States Marshal for service upon the defendants. The Clerk shall forward a copy of the summonses and Second Amended Complaint to the Office of the County Attorney for Broome County, together with a copy of this Decision and Order. ORDERED, that a response to the Second Amended Complaint be filed by the defendants, or their counsel, as provided for in the Federal Rules of Civil Procedure. Signed by Magistrate Judge Therese Wiley Dancks on 12/1/17. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ANTHONY DENNIS GUTEK,
Plaintiff,
v.

9:17-CV-0471
(BKS/TWD)

JOHN DOE #1, et. al.,
Defendant.

APPEARANCES:
ANTHONY DENNIS GUTEK
14-B-2918
Plaintiff, pro se
Livingston Correctional Facility
P.O. Box 91
Sonyea, NY 14556
THÉRÈSE WILEY DANCKS
United States Magistrate 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 amend the Complaint. See id.
1

On July 21, 2017, Plaintiff submitted an Amended Complaint. Dkt. No. 9 ("Am.
Compl."). By Decision and Order filed on August 11, 2017 (the "August Order"), the Court
found that Plaintiff's claims against the John Doe defendants survive review and require a
response. Dkt. No. 10. The Court instructed the Clerk of the Court to send a copy of the
Amended Complaint and the August Order to the Office of the County Attorney for Broome
County. Id. at 4. The Broome County Attorney's Office was instructed to attempt to
ascertain the identity of the defendants and addresses where they could be served and to
provide that information to the Court. Id.
On September 11, 2017, the Broome County Attorney's Office responded to the
August Order. Dkt. No. 11. In an Order filed on September 26, 2017 (the "September
Order"), the Court directed the Clerk of the Court to forward a copy of the response to
Plaintiff. Dkt. No. 12. The Plaintiff was instructed:
To the extent that Plaintiff can identify any of the other Doe
defendants, he may amend his complaint. In an effort to assist
plaintiff in drafting the proposed second amended complaint,
the Clerk shall forward to plaintiff a copy of his amended
complaint (Dkt. No. 9). Plaintiff may identify the Doe
defendants by handwriting the names in the appropriate
locations throughout on the copy of the amended complaint
and indicate in the caption of the document that it is a second
amended complaint. Once plaintiff has made these changes
to the copy of the amended complaint, captioned it as his
second amended complaint, and signed the proposed second
amended complaint, he should submit it to the Court for review.
Plaintiff should also keep a copy of the proposed second
amended complaint for his personal records.
Dkt. No. 12.
On October 13, 2017, Plaintiff submitted a Second Amended Complaint in accordance

2

with the September Order.1 Dkt. No. 13. Upon review, the Second Amended Complaint is
accepted for filing and is the operative pleading in this action.
WHEREFORE, it is hereby
ORDERED that the Second Amended Complaint (Dkt. No. 13) is ACCEPTED for filing
and is the operative pleading in this action; and it is further
ORDERED that the Clerk shall revise the docket to add (i) "David Parsons" as a
defendant in place of defendant "John Doe #2;" (ii) "Ronald Riquier" as a defendant in place
of defendant "John Doe #3;" and (iii) "Franklin Birt" as a defendant in place of "John Doe #4;"
and it is further
ORDERED that the Clerk shall issue a summonses and forward them, along with
copies of the Second Amended Complaint, to the United States Marshal for service upon the
defendants. The Clerk shall forward a copy of the summonses and Second Amended
Complaint to the Office of the County Attorney for Broome County, together with a copy of
this Decision and Order; and it is further
ORDERED, that a response to the Second Amended Complaint be filed by the
defendants, or their counsel, as provided for in the Federal Rules of Civil Procedure;
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. Any paper sent by a party to the Court or
the Clerk must be accompanied by a certificate showing that a true and correct copy
1

Because defendants have not yet responded, the pleading was filed as of right pursuant to Rule

15(a).

3

of same was served on all opposing parties or their counsel. Any document received
by the Clerk or the Court which does not include a proper certificate of service will be
stricken from the docket. Plaintiff must comply with any 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. Plaintiff is also required to
promptly notify the Clerk’s Office and all parties or their counsel, in w riting, of any
change in his address; their failure to do so will result in the dismissal of his action;
and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
Plaintiff in accordance with the Local Rules.
Dated: December 1, 2017
Syracuse, New York
SO ORDERED:

4