Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

MERCER v. ACTING COMM'R OF DOCS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


July 29, 1997

MICHAEL MERCER, Plaintiff,
v.
ACTING COMMISSIONER OF DOCS; DANIEL SENKOWSKI; Superintendent at Clinton Correctional Facility; SENIOR MAIL CLERK at Clinton Correctional Facility, Defendants.

The opinion of the court was delivered by: HOME

ORDER and REPORT-RECOMMENDATION

 I. Background.

 Presently before this Court for review is an amended complaint and signed inmate authorization form filed by Michael Mercer ("plaintiff" or "Mercer"). See docket nos. 5 and 6, respectively. Such complaint and inmate authorization form were submitted by Mercer in compliance with the undersigned's Order and Report-Recommendation signed on May 29, 1997. See docket no. 4 ("Report-Recommendation").

 II. Discussion.

 (A) Amended complaint.

 When the Court reviewed plaintiff's intial complaint, the undersigned noted that same was illegible and that Mercer was therefore required to submit an amended complaint in this action. Report-Recommendation at 1-2. Plaintiff was informed that he was to "clearly print or, preferably type, ... and double space the lines of text" in the body of such amended complaint. Id. at 2. Mercer's amended complaint consists of three pages of single-spaced, handwritten allegations of misconduct against individuals employed by the New York State Department of Corrections. See docket no. 5. While certain portions of Mercer's amended complaint can be deciphered by the Court, the majority of the allegations in plaintiff's complaint, as written, are still illegible. *fn1" Thus, such amended complaint fails to comply with the undersigned's Report-Recommendation.

 Since it is impossible for the Court to ascertain the allegations in plaintiff's amended complaint, the Court recommends that if Mercer fails to file a second amended complaint within thirty (30) days of the date of the service of this Order and Report-Recommendation, this action be dismissed.

 Any such amended complaint, which shall supersede and replace in its entirety the previous complaint filed by plaintiff, must contain a caption that clearly identifies, by name, each individual that Mercer is suing in the present lawsuit. In light of the illegibility of Mercer's handwriting, the amended complaint must be typewritten and double spaced.2

 Additionally, such complaint must contain sequentially numbered paragraphs containing only one act of misconduct per paragraph. Thus, if Mercer claims that his civil and/or constitutional rights were violated by more than one defendant, or on more than one occasion, he shall include a corresponding number of paragraphs in his amended complaint for each such allegation, with each paragraph specifying (i) the alleged act of misconduct; (ii) the date on which such misconduct occurred; (iii) the names of each and every individual who participated in such misconduct; (iv) where appropriate, the location where the alleged misconduct occurred and (v) the nexus between such misconduct and plaintiffs civil and/or constitutional rights.

 While Mercer may attach exhibits to his amended complaint, he shall not incorporate them by reference as a means of providing the factual basis for his claims. Thus, plaintiff must name the individuals whom he seeks to include as defendants herein in both the caption and the body of Mercer's amended complaint; he may not rely on the fact that individuals are named in the exhibits attached to his amended complaint as a means of including such persons as defendants to this lawsuit. Plaintiff may, of course, attach exhibits to his amended complaint, however, the Court will not independently examine exhibits that Mercer does not specifically reference (by the exhibit's page number) in his amended complaint.

 Mercer's amended complaint shall also assert claims against each and every defendant named in such complaint, and shall be filed with the Court within thirty (30) days from the date of the service of this Order and Report-Recommendation. Any defendants not named in such pleading shall not be defendants in the instant action. Plaintiff is further cautioned that no portion of any prior complaint shall be incorporated into his amended complaint by reference. Moreover, Mercer shall submit only one amended complaint in accordance with the terms of this Order and Report-Recommendation. Therefore, plaintiff shall state in the single amended complaint filed in accordance with the terms of this Order and Report-Recommendation all claims that he wishes this Court to consider as a basis for awarding plaintiff relief herein.

 (B) In forma pauperis application.

 Turning to plaintiff's in forma pauperis application, the Court notes that the Report-Recommendation ordered Mercer to either submit the $ 150.00 filing fee or an inmate authorization form which authorized the disbursement from plaintiff's inmate account, of $ 150.00, to the Court. See docket no. 4 at 2-3. On July 2, 1997, Mercer filed with the Court an inmate authorization form which authorizes the disbursement of $ 150.00 from his inmate account. See docket no. 6. Since the inmate authorization complies with such Report-Recommendation, the Court finds that Mercer may properly proceed with this action in forma pauperis.

 WHEREFORE, it is hereby

 RECOMMENDED, that if plaintiff fails to file a typed, double-spaced amended complaint within thirty (30) days from the date of the service of this Order, the instant action be dismissed due to plaintiff's failure to comply with the requirements of this Order, and it is further

 RECOMMENDED, that if plaintiff fails to allege specific acts of misconduct as to any of the individuals named in any amended complaint filed herein, the instant action be dismissed with respect to the individuals against whom the plaintiff has failed to allege specific acts of misconduct, and it is further

 ORDERED, that upon the filing of plaintiff's amended complaint as directed above, the file in this matter be returned to the undersigned for further review, and it is further

 ORDERED, that leave to proceed or prosecute this action in forma pauperis is granted, and it is further

 ORDERED, that the Clerk serve a copy of this Order on the plaintiff by regular mail.

 Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e) and 72.

 IT IS SO ORDERED.

 Dated: July 29, 1997

 Albany, New York

 David R. Homer

 U.S. Magistrate Judge

  ATTACHMENT

 4. FACTS

 Set forth the facts of your case which substantiate your claim of violation of your civil and/or Constitutional rights. List the events in the order they happened, naming defendants involved, dates and places.

 Note: Each fact should be stated in a separate paragraph; paragraphs should be numbered sequentially.

 

You must include allegations of wrongful conduct as to EACH and EVERY defendant in your complaint.

 You may use additional sheets as necessary.

 [SEE TEXT IN ORIGINAL]

 Form E (1) (a) . 3


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.