Hernandez v. John Doe # 1 et al

Filing 23

DECISION AND ORDER denying 22 Motion for Photo Array and ordering Plaintiff to provide a physical description of the John Doe defendants within 30 days of entry. Signed by Hon. Elizabeth A. Wolford on 04/29/2020. (CDH)

Case 1:17-cv-00151-EAW Document 23 Filed 04/29/20 Page 1 of 5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JOSE HERNANDEZ,
Plaintiff,

DECISION AND ORDER
1:17-CV-00151 EAW

v.
JOHN DOE #1, et al.,
Defendants.
___________________________________

BACKGROUND
Plaintiff Jose Hernandez, an inmate currently confined that at the Sing Sing
Correctional Facility, filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983.
(Dkt. 1). Upon granting Plaintiff permission to proceed in forma pauperis, the Court
screened Plaintiff’s Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A and
dismissed Plaintiff’s claims with leave to amend. (Dkt. 15). Plaintiff thereafter filed an
Amended Complaint. (Dkt. 16). Upon screening the Amended Complaint, the Court
dismissed several claims and defendants from the case, including all named defendants.
(Dkt. 18). The Court allowed the claims against defendants John Doe #1, John Doe #2,
John Doe #3, John Doe #4, and John Doe #7 to proceed to service and requested, pursuant
to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), that the New York State Attorney
General’s Office (the “AG’s Office”) provide information regarding the identities of the
John Doe defendants. (Id.).

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On January 25, 2019, the AG’s Office provided a response to the Court’s request.
(Dkt. 19). The AG’s Office explained that it had attempted to identify the John Doe
defendants, including by conferring with the deputy superintendent of the Elmira
Correctional Facility (where the events complained of occurred), reviewing staffing charts
for the relevant dates, and reviewing facility log books for the relevant date. (Id. at 1-2).
“Despite those efforts,” the AG’s Office was “unable to determine with any degree of
certainty the identities of John Does 1, 2, 3, 4 and 7.” (Id. at 2). The AG’s Office provided
to Plaintiff a copy of an Unusual Incident Report from October 15, 2015, regarding an
incident between Plaintiff and another inmate, to assist him in identifying the John Doe
defendants. (Id. at 3-34).
After receiving the Unusual Incident report, Plaintiff did not identify the John Doe
defendants or make any other filings in this case. On January 24, 2020, the Court issued a
Decision and Order requiring Plaintiff, within 30 days, to either identify the John Doe
defendants based on the information provided in the Unusual Incident Report, or to provide
to the Court and the AG’s office physical descriptions of the John Doe defendants, as well
as any other additional information in his possession that could aid in identification. (Dkt.
20).
Plaintiff did not comply with the Court’s instructions. Instead, on February 13,
2020, he filed a motion requesting “[c]olor copies of the ID Photos of all correctional staff
working at Elmira C.F. on October 14, 2015.” (Dkt. 22 at 1). Plaintiff stated that he “firmly
believes the physical descriptions he would provide regarding the John Doe’s would be
general, vague and not very helpful to specify a defendant.” (Id.).
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DISCUSSION
In Valentin, the Second Circuit recognized that the “general principle of tort law
that a tort victim who cannot identify the tortfeasor cannot bring suit” is “relaxed . . . in
actions brought by pro se litigants,” particularly those who are incarcerated. 121 F.3d at
75. The Second Circuit further held that in such cases, the district should assist the plaintiff
in obtaining discovery in order to identify unnamed defendants. Id. However, a plaintiff
ultimately “retains the obligation to provide the necessary information to name or identify
the defendant and to serve him,” Carpio v. Luther, No. 06-CV-0857, 2009 WL 605300, at
*1 (W.D.N.Y. Mar. 9, 2009), and a district court may, after appropriate inquiry, determine
“that the information available is insufficient to identify the defendant with enough
specificity to permit service of process, so that dismissal of the complaint is warranted,”
Valentin, 121 F.3d at 76. See also Lapoint v. Vasiloff, No. 1:15-CV-185, 2016 WL 951566,
at *5 (N.D.N.Y. Mar. 9, 2016) (“[T]he plaintiff is ultimately required to . . . provide
sufficient factual basis to allow the defendants to successfully identify the John Doe
Defendants and prepare for a defense.” (quotation omitted)).
Courts sometimes order the provision of a photo array in order to aid in the
identification of John Doe defendants. However, such orders are generally appropriate
only where the plaintiff has provided a physical description of the defendants. See, e.g.,
Coleman v. Cuomo, No. 9:18-CV-0390 MAD CFH, 2019 WL 257933, at *7 n.3 (N.D.N.Y.
Jan. 18, 2019) (noting the plaintiff’s two requests for “a photo array of all employees who
worked at Clinton C.F. on June 8, 2015” had been denied due to his failure to provide
further details regarding the John Doe defendants); Jean-Laurent v. Hennessy, No.
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05-CV-1155(JFB)(LB), 2008 WL 3049875, at *5 (E.D.N.Y. Aug. 1, 2008) (defendants
were ordered to “produce photographs of all officers that fit plaintiff’s description of [the]
John Doe Officer”); Davis v. City of Chicago, 219 F.R.D. 593, 596 (N.D. Ill. 2004)
(plaintiffs were required “to provide a physical description of the unknown officers before
examining the photographs”).
The photo array procedure Plaintiff has requested in this case is overbroad and
creates an unreasonable risk that Plaintiff would merely pick officers at random from the
photographs presented. As the Court has already explained, it is Plaintiff’s obligation to
provide the necessary information to allow accurate identification of the John Doe
defendants. Plaintiff must provide a physical description of the John Doe defendants. If
that physical description is insufficient to permit identification, the Court will consider a
renewed request for a photo array, with appropriate safeguards. See, e.g., Davis, 219
F.R.D. at 600 (ordering “production of the photographs on the condition that the
examination of the photographic array be conducted under the supervision of an
independent, neutral person trained in the proper methods of eyewitness identification”).
Accordingly, Plaintiff’s motion for a photo array (Dkt. 22) is denied as premature.
The Court again orders Plaintiff to, within 30 days of entry of this Decision and Order,
provide any additional information to the Court and the AG’s Office regarding the John
Doe defendants that he possesses, including but not limited to detailed physical
descriptions. If Plaintiff fails to make a submission in accordance with this Decision and
Order, his claims will be dismissed for failure to provide information that would allow
defendants to be served. See Bishop v. City of New York, No. 13-CV-9203 AJN, 2016 WL
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4484245, at *3 (S.D.N.Y. Aug. 18, 2016) (“[I]f a plaintiff is unable to identify defendants
after being afforded the opportunity for limited discovery with assistance from the Court,
his claims must be dismissed.”).
SO ORDERED.

________________________________

ELIZABETH A. WOLFORD
United States District Judge

Dated: April 29, 2020
Rochester, New York

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