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Peralta v. Donnelly

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


February 20, 2007

FRANCISCO PERALTA, PLAINTIFF,
v.
SUPERINTENDENT EDWARD DONNELLY, DEFENDANT.

The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

Siragusa, J. In the Court's Decision and Order (# 13), entered on August 11, 2006, the Court deferred decision on defendant's motion to dismiss (#7), and referred the case to U. S. Magistrate Judge Marian W. Payson for supervision of discovery, in compliance with District Court Judge William M. Skretny's January 24, 2005 Decision and Order (#3), permitting plaintiff to amend his complaint to identify the "John Doe" defendant (#3). In its Decision and Order (#13), however, this Court warned plaintiff that failing identification of the John Doe defendant's identity within a reasonable time, defendant could move this Court to issue a decision on the motion to dismiss.

On December 11, 2006, Magistrate Judge Payson issued a discovery scheduling order (#16) setting a discovery closing date of January 31, 2007. To present, plaintiff has failed to identify the John Doe defendant's true identity, despite being given more than a reasonable opportunity to do so. The Court is now in receipt of a letter dated February 15, 2007, from defense counsel, with a copy having been sent to plaintiff, requesting the Court to decide the motion to dismiss the only named defendant, Superintendent Edward Donnelly.

For the reasons stated in its prior decision and order (# 13), the Court hereby grants defendant Donnelly's motion (# 7) to dismiss. The Clerk is directed to enter judgment for defendant.

IT IS SO ORDERED.

Rochester, New York

20070220

© 1992-2007 VersusLaw Inc.



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