Ware v. Hilton et al

Filing 15

DECISION AND ORDER that plaintiff must, within thirty (30) days of the filing date of this Decision and Order, review the Status Report (Dkt. No. 12 ) filed by New York State Attorney General's Office and, to the extent that he is able to i dentify the remaining "Doe" defendant based on the submission, submit an amended complaint substituting the named defendant in place of the "Doe" defendant. In the event plaintiff is unable to comply with this directive, he mus t advise the Court of this within thirty (30) days of the date of this Decision and Order, and provide an appropriate explanation. In the event plaintiff fails to timely comply with this Decision and Order, this action will be dismissed without pre judice without further Order of this Court and the Clerk shall close the case. Upon plaintiff's compliance with this Decision and Order, this matter shall be returned to the Court for further review. The Clerk shall serve a copy of this Decis ion and Order on plaintiff, along with a copy of the docket sheet, the Complaint, the April 2024 Order, the Status Report, and the May 2024 Text Order. Signed by U.S. District Judge Glenn T Suddaby on 8/30/2024. (Copy of this Decision and Order, the docket sheet, Complaint, April 2024 Order, Status Report and May 2024 Text Order served upon plaintiff via regular mail)(sal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

KHYREL WARE,
Plaintiff,
v.

9:24-CV-0187
(GTS/ML)

DR. JOHN DOE,
Defendant.

APPEARANCES:
KHYREL WARE
Plaintiff, Pro Se
20-A-0725
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562

GLENN T. SUDDABY
United States District Judge
DECISION AND ORDER
Plaintiff Khyrel Ware, proceeding pro se in this 42 U.S.C. § 1983 ("Section 1983") civil
rights action, alleges wrongdoing while he was incarcerated at Mid-State Correctional Facility.
Dkt. No. 1 ("Complaint"). By Decision and Order entered on April 12, 2024, the Court
dismissed certain claims pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) f or
failure to state a claim upon which relief may be granted, and found that plaintiff's Eighth
Amendment medical indifference claim against Dr. John Doe survived sua sponte review.
Dkt. No. 8 ("April 2024 Order"). Because service could not be effectuated on the "Doe"

defendant, the Court directed the Clerk to send a copy of the Complaint and April 2024 Order
to the New York State Attorney General's Office and requested that the New York State
Attorney General's Office, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d. Cir. 1997) (per
curiam), attempt to ascertain the full name of the "Doe" defendant. Id. at 23-25.
On May 6, 2024, an Assistant Attorney General from the New York State Attorney
General's Office filed a letter in an effort to assist plaintiff with identifying the "Doe"
defendant. See Dkt. No. 12 ("Status Report").
By Text Order filed on May 16, 2024, plaintiff was directed to review the Status Report
and, to the extent he was able to do so, submit a proposed amended complaint within thirty
(30) days which substitutes named defendant in place of the "Doe" defendant. See Dkt. No.
13 ("May 2024 Text Order").1 Plaintiff was further advised that "his failure to timely comply
with this Order may result in the dismissal of this action pursuant to Rules 4(m) and Rule
41(b) of the Federal Rules of Civil Procedure and Northern District of New York Local Rule
41.2(a)." Id.
More than sixty (60) days has passed since the entry of the May 2024 Text Order, and
plaintiff has failed to submit a proposed amended complaint or seek an extension of time to
do so. Plaintiff did, however, file a notice of change of address shortly after the May 2024
Text Order was issued. See Dkt. No. 14.
An action cannot proceed until the completion of service, and unidentified defendants
cannot be served. While it is the Court's obligation to assist with service when a pro se

1
In an effort to assist plaintiff in drafting the proposed amended complaint, the Clerk was directed to
send him a copy of his Complaint. See May 2024 Text Order.

2

prisoner is proceeding in forma pauperis,2 as in this case, the Court cannot do so unless and
until the pro se prisoner has provided the required documents. See Carpio v. Luther, No.
06-CV-0857, 2009 WL 605300, at *1 (W.D.N.Y. Mar. 9, 2009) (acknowledging the Court's
"obligation to assist a pro se incarcerated litigant . . . to cause the summons and complaint to
be served" but noting further that "the plaintiff nonetheless retains the obligation to provide
the necessary information" for this to occur).3
Moreover, Rule 41(b) of the Federal Rules of Civil Procedure provides that a court
may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute it, or
to comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); see also
Link v. Wabash R.R. Co., 370 U.S. 626 (1962). 4 This power to dismiss may be exercised
when necessary to achieve orderly and expeditious disposition of cases. See Freeman v.
Lundrigan, No. 95-CV-1190 (RSP/RWS), 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996). 5
2

See Fed. R. Civ. P. 4(c)(3) (Marshals Service must be appointed to serve process when plaintiff is
authorized to proceed in forma pauperis); 28 U.S.C. § 1915(d) ("[T]he officers of the court shall issue and serve
all process and perform all duties in [in forma pauperis] cases."); see also Wright v. Lewis, 76 F.3d 57, 59 (2d
Cir. 1996) ("By granting Wright leave to pursue his § 1983 claim in forma pauperis, Magistrate Smith shifted the
responsibility for serving the complaint from Wright to the court."); Kavazanjian v. Rice, No. 03-CV-1923, 2005
WL 1377946, at *2 (E.D.N.Y. June 6, 2005) (noting that "[f]or plaintiffs proceeding in forma pauperis . . ., the U.S.
Marshal's Office—not the plaintiff—is primarily responsible for effecting service.").
3

Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, in the absence of a showing of good
cause, "[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that
service be made within a specified time."
4

It is well-settled that the term "these rules" in Fed. R. Civ. P. 41(b) refers not only to the Federal Rules
of Civil Procedure but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146,
147 (N.D.N.Y. 2006).
5

Even though Rule 41(b) speaks only of a dismissal on a motion by a defendant, courts have
recognized that the rule does not abrogate a district court's inherent power to dismiss a complaint, sua sponte,
for failure to prosecute. See Saylor v. Bastedo, 623 F.2d 230, 238-39 (2d Cir. 1980). The correctness of a Rule
41(b) dismissal for failure to comply with an order of the court or the procedural rules of the court is determined
in light of five factors: (1) the duration of the plaintiff's failure to comply with the court order (or the court's
procedural rules), (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether
the defendant is likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest

3

Because plaintiff is proceeding pro se, and has raised concerns with access to his
personal property in his most recent filing, see Dkt. No. 14, the Court will afford him a final
opportunity to comply with the May 2024 Text Order, or explain why he is unable to do so. In
the event plaintiff fails to comply with this Decision and Order within thirty (30) days, this
action will be dismissed without prejudice without further Order of the Court pursuant to Fed.
R. Civ. P. 4(m), 41(b) and N.D.N.Y. L.R. 41.2(a).
WHEREFORE, it is hereby
ORDERED that plaintiff must, within thirty (30) days of the filing date of this Decision
and Order, review the Status Report (Dkt. No. 12) filed by New York State Attorney General's
Office and, to the extent that he is able to identify the remaining "Doe" defendant based on
the submission, submit an amended complaint substituting the named defendant in place of
the "Doe" defendant;6 and it is further
ORDERED that, in the event plaintiff is unable to comply with this directive, he must
advise the Court of this within thirty (30) days of the date of this Decision and Order, and
provide an appropriate explanation; and it is further
ORDERED that in the event plaintiff fails to timely comply with this Decision and
Order, this action will be dismissed without prejudice without further Order of this Court
and the Clerk shall close the case; and it is further

in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the
judge has adequately considered a sanction less drastic than dismissal. Lucas v. Miles, 84 F.3d 532, 535 (2d
Cir. 1996).
6

In the event plaintiff seeks to substitute the named defendant in place of the unnamed defendant
without any further changes to the Complaint, he may do so by handwriting the defendant's name in place of
unnamed defendant in the appropriate locations throughout the Complaint. Once plaintiff has made these
changes, captioned the document as his amended complaint, and signed and dated the proposed pleading, he
should submit it to the Court for review.

4

ORDERED that upon plaintiff's compliance with this Decision and Order, this matter
shall be returned to the Court for further review; and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff,
along with a copy of the docket sheet, the Complaint, the April 2024 Order, the Status
Report, and the May 2024 Text Order.
IT IS SO ORDERED.
Dated: August 30, 2024
Syracuse, NY

5