Hernandez v. John Doe # 1 et al
Filing
26
DECISION AND ORDER denying 25 Motion for Reconsideration. The Complaint is dismissed without prejudice based on Plaintiffs failure to provide sufficient information to permit identification and service of the remaining defendants. The Court certifies that any appeal would not be taken in good faith and, therefore leave to appeal to the Court of Appeals as a poor person is denied. Signed by Hon. Elizabeth A. Wolford on 8/13/2020. (CGJ) Copy of Order and appeal packet mailed to Plaintiff.
Case 1:17-cv-00151-EAW Document 26 Filed 08/13/20 Page 1 of 4
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 (“Plaintiff”), an inmate currently confined that at the Sing
Sing Correctional Facility and previously confined at the Elmira Correctional Facility, filed
this pro se action seeking relief pursuant to 42 U.S.C. § 1983. (Dkt. 1). The only
defendants left in this matter are John Doe defendants. (See Dkt. 20 at 1). At the request
of the Court (Dkt. 18 at 13), the New York State Attorney General’s Office (the “AG’s
Office”) attempted to ascertain the identities of the John Doe defendants but was unable to
do so based on the information provided by Plaintiff. (Dkt. 19). The AG’s Office provided
Plaintiff with 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
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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). The Court denied Plaintiff’s
request for a photo array by Decision and Order dated April 29, 2020, explaining that photo
array orders are “generally appropriate only where the plaintiff has provided a physical
description of the defendants.” (Dkt. 23 at 4). The Court again ordered Plaintiff to provide
a physical description of the John Doe defendants, and warned him that if he failed to do
so, his claims would be dismissed “for failure to provide information that would allow
defendants to be served.” (Id.).
Plaintiff was given until August 3, 2020, to provide the required physical
description. (Dkt. 24). He again failed to do so. Instead, on August 3, 2020, he filed a
motion for reconsideration of the Court’s denial of his request for a photo array. (Dkt. 25).
DISCUSSION
The Court denies Plaintiff’s request for reconsideration of its denial of his request
for a photo array. As the Court explained in its prior Decision and Order, the photo array
that Plaintiff has requested—that is, photographs of “all correctional staff working at
Elmira C.F. on October 14, 2015” (Dkt. 22 at 1)—would “create[] an unreasonable risk
that Plaintiff would merely pick officers at random from the photographs presented.” (Dkt.
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23 at 4). The Court’s conclusion in this regard is affirmed by Plaintiff’s ongoing, repeated
refusal to provide a physical description of the John Doe defendants. In other words, if
Plaintiff has sufficient recollection of the John Doe defendants’ appearances to accurately
choose them from a photo array, there is no reason (and he has proffered none) he cannot
provide a general physical description to narrow down the potential pool. Plaintiff’s
unsupported opinion that “the physical descriptions he would provide regarding the John
Doe’s [sic] would be general, vague and not very helpful to specify a defendant” (Dkt. 22
at 1) does not justify his repeated failure to comply with the Court’s instructions.
Moreover, while the Court acknowledges that Plaintiff claims to have limited
knowledge of the English language (see Dkt. 25 at 1), it has now been nearly seven months
since the Court first ordered Plaintiff to provide a physical description of the John Doe
defendants. In that time, Plaintiff has managed to make multiple submissions to the Court
in English. (Dkt. 21; Dkt. 22; Dkt. 25). Plaintiff could have included the required
information in any of these submissions but did not do so.
The Court accordingly denies Plaintiff’s motion for reconsideration. (Dkt. 25)
Further, because Plaintiff has failed, despite being given multiple opportunities, to provide
additional information sufficient to permit identification of the John Doe defendants, the
Court finds that dismissal of this action is required. See Valentin v. Dinkins, 121 F.3d 72,
76 (1997) (explaining that dismissal of a complaint is warranted where, after appropriate
inquiry, the Court determines “that the information available is insufficient to identify the
defendant with enough specificity to permit service of process”); see also Lapoint v.
Vasiloff, No. 1:15-CV-185, 2016 WL 951566, at *5 (N.D.N.Y. Mar. 9, 2016) (“[T]he
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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)).
CONCLUSION
For the reasons discussed above, the Court denies Plaintiff’s motion for
reconsideration (Dkt. 25) and dismisses the Complaint without prejudice based on
Plaintiff’s failure to provide sufficient information to permit identification and service of
the remaining defendants. The Clerk of Court is instructed to close the case.
The Court hereby certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Decision and Order would not be taken in good faith, and leave to appeal to the Court
of Appeals as a poor person is denied. See Coppedge v. United States, 369 U.S. 438 (1962).
Requests to proceed on appeal as a poor person should be directed, on motion, to the United
States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal
Rules of Appellate Procedure.
SO ORDERED.
________________________________
ELIZABETH A. WOLFORD
United States District Judge
Dated: August 13, 2020
Rochester, New York
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