You're viewing Docket Item 11 from the case Ellis v. Downstate Medical Department et al. View the full docket and case details.

Download this document:




Case 7:05-cv-10880-CLB-GAY Document 11 Filed 07/19/06 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x

HAROLD ELLIS,

Plaintiff,

-against- 05 Civ. 10880 (CLB)(GAY)

JANE DOE, JOHN DOE,

Defendants.

-----------------------------------------------------------------x

REPORT AND RECOMMENDATION

TO THE HONORABLE CHARLES L. BRIEANT, U.S. DISTRICT JUDGE

Plaintiff Harold Ellis, presently incarcerated at Fishkill Correctional Facility, brings this

action pro se. He alleges that “Jane Doe”, an unidentified nurse who worked in

Complex 1 of the Downstate Correctional Facility’s Medical Department when plaintiff

was incarcerated there, violated plaintiff’s constitutional rights. Plaintiff further alleges

that “John Doe”, an unidentified physician who worked in Complex 3 of the Downstate

Correctional Facility’s Medical Department when plaintiff was incarcerated there,

violated plaintiff’s constitutional rights.

Plaintiff has currently only named Jane Doe and John Doe as defendants. (See

Order of Chief Judge Mukasey dated March 21, 2006). By Order dated April 24, 2006,

the undersigned directed the Attorney General of the State of New York, although not

representing any defendant in this action as of yet, to attempt to identified the names and

addresses for service of the Jane and John Doe defendants pursuant to Valentin v.

Dinkins, 121 F.3d 72 (2d Cir. 1997). This Attorney General was given 30 days to provide

Case 7:05-cv-10880-CLB-GAY Document 11 Filed 07/19/06 Page 2 of 3

said information to the plaintiff and Court; or advise if identification of the Does could not

be made. Plaintiff was advised in the April 24, 2006 Order that failure to file an amended

complaint identifying the Jane Doe and John Doe defendants; and providing the proper

documents for service to the Marshals by June 30, 2006 may result in dismissal of the

amended complaint.

By letter dated May 25, 2006, the Attorney General advised the plaintiff and Court

that based upon conversations with Department of Correctional Services employees and

their review of plaintiff’s medical records it is not possible to determine who the

individuals are that plaintiff intends to sue. However, the Attorney General provided

plaintiff was a copy of his Ambulatory Health Record for the period of time in questions.

The Attorney General also provided the names and work addresses of a number of

employees who participated in plaintiff’s care during the time period in question.

Fed. R. Civ. P. 4(m) provides in relevant part that service of the summons and

complaint must be made within 120 days after the filing of the complaint, or within the

time period specified by the Court. Rule 4(m) further provides that failure to serve the

complaint within said time period could result in dismissal of the complaint, without

prejudice. The complaint herein was docketed on or about January 6, 2006. The

amended complaint herein was docketed on or about March 8, 2006. The Court sua

sponte directed the Attorney General to attempt to identify the defendants. Plaintiff was

put on notice that failure to provide an amended complaint to the Marshal by June 30,

2006, for service upon named defendants could result in dismissal of this action. Plaintiff

has not complied with the Order of the Court.

Accordingly, the Court respectfully recommends that the amended complaint be

2

Case 7:05-cv-10880-CLB-GAY Document 11 Filed 07/19/06 Page 3 of 3