The opinion of the court was delivered by: Thomas J. McAvoy, Senior United States District Judge
Presently before the Court is a civil rights complaint and application to proceed in forma pauperis brought by Plaintiff James Pettus, who is currently incarcerated at Great Meadow Correctional Facility.*fn1 Dkt. Nos. 1, 2.
In his complaint, Plaintiff alleges that Defendants Goord, Teresa Knapp David,*fn2 Corcoran, McCoy, and John and Jane Does have acted with "deliberate indifference" in creating and enforcing a policy that allows a non-violent inmate to be placed in a maximum security facility when the inmate is assigned to the SHU unit. Dkt. No. 1 at 9. Plaintiff alleges the policy has caused his life, safety, health, and well-being to be in constant jeopardy. Id. at 11. Plaintiff alleges Defendant Lt. Simms violated Plaintiff's civil rights by designating Plaintiff's ticket a "Tier III." Id. at 15. For a complete statement of Plaintiff's claims, reference is made to the complaint.
II. In forma pauperis Application
After reviewing the entire file herein, the Court finds that Plaintiff's in forma pauperis application may be granted.
In reviewing Plaintiff's complaint, the Court has followed the Second Circuit's instructions that courts should construe the pleadings of pro se litigants liberally and should excuse technical pleading irregularities, provided that those irregularities "neither undermine the purpose of notice pleading nor prejudice the adverse party." Phillips v. Girdich, 408 F.3d 124, 127-28 (2d Cir. 2005) (citations omitted).
A. Plaintiff's Previous Petition, Pettus v. McCoy et al
Plaintiff's complaint states that he is "re-submitting [his] claim, which was dismissed," on September 13, 2006. Dkt. No. 1 at . Plaintiff is referring to Pettus v. McCoy et al, 04-CV-0471, which was dismissed, without prejudice. Defendant McCoy is the only Defendant in Pettus v. McCoy et al that is included in this action. Plaintiff has requested the Court to incorporate exhibits and "opposition papers" from Plaintiff's previous petition into this action. Id. at 8. Plaintiff's request is denied. This Court will only consider the pleadings and exhibits that are filed in this action as a basis for determining the facts and merits of this action.*fn3
B. Defendants John and Jane Does
Plaintiff has listed as Defendants ' "all" and "any" John and Jane Does who work movement and classification.' Dkt. No. 1 at 14. The United States Marshals Service can only effect service of a summons and complaint on identifiable individuals. Plaintiff is therefore directed to take reasonable steps to ascertain the identity of each of these Defendants. Upon learning the identity of any of these individuals, Plaintiff must amend his complaint to properly name him or her as a Defendant herein. If Plaintiff fails to ascertain the identity of any of the John and Jane Does so as to permit the timely service of process, this action will be dismissed as against him or her.
C. Allegations against Lt. Simms
Plaintiff has alleged claims against Lt. Simms that concern the same facts as Plaintiff has alleged against a Lt. Zimms in Pettus v. Zimms, 04-CV-0802.*fn4 The Court believes Lt. Simms and Lt. Zimms to be one in the same.*fn5 Thus, Plaintiff has attempted to bring the same action against the same Defendant in two separate actions. Plaintiff is reminded that he cannot relitigate the same claims against the same Defendant after the Court has reached a decision, unless the Court has dismissed the action without prejudice. Plaintiff's ...