Rizzo v. Doe

DECISION AND ORDER Plaintiff Jonathan Rizzo commenced this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. §1983 (“Section 1983″), together with an application for leave to proceed in forma pauperis. Dkt. No. 2 (“Compl.”); Dkt. No. 7 (“IFP Application”).¹ By Decision and Order entered on August 18, 2022, this Court granted plaintiff’s IFP Application, and following review of the complaint pursuant to 28 U.S.C. §1915(e)(2)(B) and 28 U.S.C. §1915A(b), found that plaintiff’s Eighth Amendment excessive force claims against John Does #1-4 survived sua sponte review and required a response. Dkt. No. 9 (“August 2022 Order”). Because service could not be effectuated on the “Doe” defendants, the Court also directed the Clerk of Court to send a copy of the complaint and August 2022 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 names of the “Doe” defendants. Id. at 6-8. On October 4, 2022, 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” defendants. See Dkt. No. 12 (“Status Report”). By Order filed on October 5, 2022, 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 the named defendants in place of the “Doe” defendants, and makes any other corrections necessary. See Dkt. No. 13 (“October 2022 Order”).² 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 October 2022 Order, and plaintiff has failed to submit a proposed amended complaint or seek an extension of time to do so. Instead, plaintiff sent a letter to the Court on or about November 9, 2022, wherein he acknowledged receipt of the Status Report, attached a copy of it to his submission, and inquired as to the status of his case. Dkt. No. 14. An action cannot proceed against unidentified defendants. 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).³ 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).⁴ Because plaintiff is proceeding pro se, the Court will afford him a final opportunity to comply with the October 2022 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. 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 one or more of the previously unidentified defendants based on the submission, submit an amended complaint substituting the named defendant(s) in place of the appropriate unidentified defendant;⁵ and it is further ORDERED that, in the event plaintiff is unable to identify any of the defendants he intended to sue despite the Status Report, he m ust advise the Court of this within thirty (30) days of the date of this Decision and Order, and explain why such information is insufficient; 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 ORDERED that upon plaintiff’s compliance with this Decision and Order, the file 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 complaint, the docket sheet, and the Status Report. IT IS SO ORDERED. Dated: December 8, 2022