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Purdie v. Supervisor

January 13, 2010


The opinion of the court was delivered by: Scullin, Senior Judge



Currently before the Court are Plaintiff Sidney E. Purdie's amended complaint, see Dkt. No. 7, his motion for appointment of counsel, see Dkt. No. 12, and his motion for injunctive relief, see Dkt. No. 14.

Plaintiff submitted the amended complaint in compliance with this Court's September 30, 2009 Memorandum-Decision and Order.*fn1 See Dkt. No. 6. In that Memorandum-Decision and Order, the Court (1) dismissed "Employees of New York State Department of Correctional Services," "Auburn Post Master General," "Karen Bellamy, I.G.R.C. Director," and the "Central Office Review Committee" as Defendants; (2) dismissed Plaintiff's claims alleging negligence and failure to investigate; (3) advised Plaintiff that he must include the names of specific defendants in his amended complaint and state how each defendant personally participated in the alleged wrongdoing that gave rise to his claims; and (4) denied Plaintiff's request to add "Nurse Quinn" as an additional defendant because it appeared that Plaintiff intended to make the request in the context of another action that Plaintiff has pending in this District.*fn2 See id. at 3-4.


A. The Amended Complaint

In his amended complaint, Plaintiff alleges that Defendants denied him access to the courts because the state court never received the mail that he sent to that court from Auburn Correctional Facility. See Dkt. No. 7. Plaintiff claims that "the loss of Plaintiff's legal documents has barred him to proceed timely upon the record to file his State Habeas Corpus/Federal Habeas Corpus" and "has caused a severe burden upon Plaintiff getting matters reviewed by the Court of Appeals." See id. at 3. Plaintiff also contends that he filed a writ of error coram nobis with the state Court of Appeals "but the documents were not retrieved by the Court of Appeals in order to proceed with further review." See id.

Plaintiff names Harold D. Graham, Superintendent of Auburn Correctional Facility, as a Defendant because Mr. Graham "assigned employees of Auburn Correctional Facility to work the Administrative Mail Room." See id. at 2. Plaintiff appears to name Supervisor, Administrator Mail Room, as a Defendant for the same reason. Finally, Plaintiff alleges that certain John Doe employees at the Auburn Correctional Facility's mail room, including "John Doe, Law Library Officer," were responsible for the alleged wrongdoing but that Plaintiff is not able to identify any of the John Does at the present time. See id. at 6.

Although the amended complaint is not a model of clarity, in light of Plaintiff's pro se status and because he is unable to identify the mail room employees who he believes are responsible for allegedly not delivering his mail, the Court accepts the amended complaint for filing.*fn3 In allowing this action to proceed against the supervisory Defendants at this early stage of the proceedings, the Court notes that, when a prisoner does not know the identities of any of the individuals who allegedly violated his constitutional rights, it is appropriate to maintain "supervisory personnel as defendants . . . until the plaintiff has been afforded an opportunity through at least brief discovery to identify the subordinate officials who have personal liability." Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998) (citations omitted). "After an opportunity for discovery, undisputed allegations that the supervisor lacked personal involvement will ultimately suffice to dismiss that official from the case, . . ., but such dismissal is premature where the opportunity to identify those involved has not yet been accorded." Id. at 921-22 (internal citations omitted); see also Murphy v. Goord, 445 F. Supp. 2d 261, 266-67 (W.D.N.Y. 2006) (denying superintendent's motion for judgment on the pleadings on personal involvement grounds and allowing the plaintiff to proceed with discovery to identify the Doe defendants).

Additionally, the Court will direct the Clerk of the Court to add to the docket as a Defendant, "John Doe, Law Library Officer." The Court, however, advises Plaintiff that the United States Marshals Service cannot effect service on a "John Doe" Defendant. In the event that Plaintiff wishes to pursue any claims against an unidentified Defendant, he must take reasonable steps to ascertain the identity of that Defendant. Upon learning the identity of a Doe Defendant, Plaintiff must move to amend his amended complaint to name him or her as a Defendant properly. If Plaintiff fails to ascertain the identity of any Doe Defendant so as to permit the timely service of process, the Court will dismiss this action against that individual.

Finally, the Court notes that Plaintiff has included the "Auburn Post Master General," "Karen Bellamy, I.G.R.C. Director" and "Center Office Review Committee" as Defendants in the caption of his amended complaint, although the Court dismissed these Defendants from this action in its September 30, 2009 Memorandum-Decision and Order. See Dkt. No. 7 at 1. However, Plaintiff clearly states that the Auburn Postmaster General, Karen Bellamy, and the Central Office Review Committee are not Defendants. See id. at 2. It appears that Plaintiff includes them in the caption because he intends to call them to "testify" on his behalf. See id. The Court advises Plaintiff that he is not to include any of these dismissed Defendants in the caption of any future submissions he sends to the Court in this action. The mere fact that Plaintiff may intend to call them as witnesses on his behalf, should this action make it to trial, does not make them parties to this action.

B. Motion for Appointment of Counsel

Courts cannot use a bright-line test to determine whether to appoint counsel on behalf of an indigent party. See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, the court must carefully consider a number of factors in ruling on such a motion. As a threshold matter, the court should ascertain whether the indigent's claims seem likely to be of substance. If so, the court should then consider the following:

[t]he indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the leal issues and any special reason in th[e] case ...

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