UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
March 5, 2007
LUIS ANDINO, PLAINTIFF,
MR. HEALEY; MS. E. SIMMONS; D. HADDAD; DEPUE; STARTUP; SGT. LUCAS; VESLEY; FARROW; RODRIGUEZ; TRUE; R. WENLIN; LEGHORN; LT. SIMMONS; SQUIRES; MIRALDI, DEFENDANTS.
The opinion of the court was delivered by: David E. Peebles, U.S. Magistrate Judge
DECISION and ORDER
This action was commenced on April 24, 2006, when a submission from pro se plaintiff Luis Andino was docketed as a complaint.*fn1 Dkt. No. 1. Plaintiff also submitted a motion to certify class and a motion for injunctive relief. Dkt. Nos. 2, 3. By Memorandum-Decision and Order of Senior Judge Frederick J. Scullin, Jr., filed October 20, 2006, ("October Order"), plaintiff was advised that the pleading failed to satisfy the basic pleading requirements of the Federal Rules of Civil Procedure. Dkt. No. 8. Specifically, the October Order advised plaintiff that his original complaint did not contain a caption, did not identify defendants, and did not set forth a short and plain statement of his claims.*fn2 Id. at 4. The October Order also denied plaintiff's motions for injunctive relief and class certification. Id. at 6, 7. In light of plaintiff's pro se status, plaintiff was afforded the opportunity to submit an amended complaint. Id. at 6.
On November 22, 2006, plaintiff submitted an amended complaint in compliance with the October Order. Dkt. No. 9. Plaintiff's amended complaint named numerous defendants and contained claims of retaliation, assault, and denial of due process. Id. By Order of Senior Judge Frederick J. Scullin, Jr., filed December 18, 2006 ("December Order"), plaintiff's amended complaint was accepted for filing.*fn3 Dkt. No. 10. Notice was sent to plaintiff on December 26, 2006, that he must submit fifteen copies of his amended complaint for service to be completed.*fn4
Dkt. No. 12.
Plaintiff has now submitted a letter claiming that an error has been made "with the plaintiff's first and second part of his complaint." Dkt. No. 13 at 1. By this letter, plaintiff states that he originally sent in a 107-page complaint containing claims under the ADA on March 8, 2006. Id. at 2. This document was never received by the Court.*fn5 Plaintiff states that he thought this was the document which was received by the Court and docketed as the complaint in this action. Id. Plaintiff also states he understood the October Order to mean that he should not reference any part of his original complaint in his amended complaint; therefore, he submitted an amended complaint (Dkt. No. 9) that did not mention the events contained in his alleged 107-page original complaint.
Plaintiff stated that he is totally blind. Dkt. No. 1. Id. at 3. Plaintiff appears to be under the impression that this 107-page complaint was received by the Court and requests the Court to clarify what happened to that document.
The Court never received the 107-page document plaintiff states he submitted in March of 2006.*fn6 The Court now understands that this 107-page document was intended by plaintiff to be his original complaint in this action. The intended original complaint sets forth claims which precede those claims contained in plaintiff's amended complaint.*fn7
In light of plaintiff's pro se status and his disability, the Court will allow plaintiff the opportunity to file an amended complaint within sixty (60) days, setting forth all facts and all defendants plaintiff wishes to proceed against in this action. This amended complaint must not exceed forty (40) pages in length.*fn8 The amended complaint must be a complete pleading setting forth all information and defendants he wishes to include in this action. Plaintiff is reminded that an amended complaint replaces in its entirety any previous complaint filed. Plaintiff's amended complaint must contain all of the information plaintiff wishes the Court to consider, including all factual allegations that give rise to his causes of action and all defendants he wishes to name in the action.*fn9 The amended complaint must bear the case number assigned to this action, must be identified as an amended complaint, and must contain a caption that clearly identifies, by name, each individual and/or entity that plaintiff is suing in the present lawsuit. Plaintiff is further advised that for each individual and/or entity that he names as a defendant in the caption, he must also include allegations of wrongdoing against that individual and/or entity in the body of the second amended complaint.
WHEREFORE, it is hereby
ORDERED, that plaintiff may file with the Court within sixty (60) days from the date of the filing of this Order, a second amended complaint, and it is further
ORDERED, that upon submission of an amended complaint by plaintiff as noted above, and in all events no later than April 30, 2007, the file in this matter be returned to the Court for further review, and it is further
ORDERED, that the Clerk serve a copy of this Order on inmate Joel Anderson, and it is further
ORDERED, that the Clerk serve a copy of this Order, along with a copy of plaintiff's intended original complaint (Dkt. No. 13-2), on plaintiff by regular mail.
IT IS SO ORDERED.