The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this pro se action for monetary relief under 42 U.S.C. § 1983. Defendant Larry Hagan ("Hagan") has not been served. Defendants Cindy Law, M.D. ("Dr. Law") and Donald Sawyer ("Sawyer"), Executive Director of Central New York Psychiatric Center ("CNYPC") move (Dkt. No. 30) to dismiss the complaint.
In a Report and Recommendation (Dkt. No. 39), United States Magistrate Judge David R. Homer recommends that the motion to dismiss be denied as to Dr. Law and granted as to Sawyer. He further recommends that the claim against Hagan be dismissed without prejudice for failure to serve. Fed. R. Civ. P. 4(m). Plaintiff and defendants have filed partial objections (Dkt. Nos. 40, 41), and plaintiff has responded to defendants' objection (Dkt. No. 42). As explained below, the Court accepts the Report and Recommendation except insofar as it recommends dismissal of the claim against Hagan.
The amended complaint (Dkt. No. 7), filed December 19, 2008, alleges that in February 2008, while incarcerated at CNYPC, plaintiff experienced a psychotic episode; that Hagan, a CNYPC employee, restrained him by throwing him into a chair; and that plaintiff's left shoulder was injured. The amended complaint further alleges that Dr. Law assessed plaintiff's shoulder injury and diagnosed a "pulled muscle"; that plaintiff underwent 45 days of physical therapy and took pain medication; that nine months later plaintiff underwent a second round of physical therapy and pain medication; and that he is still undergoing physical therapy and taking pain medication. Plaintiff asserts Eighth Amendment claims, contending that Hagan subjected him to excessive force in restraining him; that Sawyer as director was personally involved because he knew or should have known of the incident; and that Dr. Law provided inadequate medical care.
Defendants moved (Dkt. No. 30) to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge David R. Homer issued a Report and Recommendation recommending that the dismissal motion be granted as to Sawyer and denied as to Dr. Law. Magistrate Judge Homer further recommends that the amended complaint be dismissed without prejudice as to Hagan under Fed. R. Civ. P. 4(m) and N.D.N.Y.L.R. 4.1(b) for failure to serve Hagan with process.
Defendants object to so much of the Report and Recommendation as recommends that this Court deny dismissal of the claim against Dr. Law. Plaintiff objects to the recommendation to dismiss as against Sawyer and Hagan. Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of the Report and Recommendation to which a party specifically objects.
The Court agrees with the recommendation to grant the motion to dismiss as to defendant Sawyer and deny dismissal as to defendant Dr. Law. The Court does not, however, agree with the recommendation to dismiss the claim against Hagan; rather, the Court extends the time for plaintiff to serve this defendant. In the initial complaint, filed on November 6, 2008, plaintiff named the employee who allegedly injured him as "John Doe." On December 19, 2008, plaintiff filed the amended complaint (Dkt. No. 7) naming this employee as Larry Hagan. On December 30, 2008, less than two months after filing the initial complaint, plaintiff filed interrogatories (Dkt. No. 11) asking defendants to identify the employees who were on duty at the time and place of the alleged incident. It appears that defendants did not respond. On February 19, 2009, the summons against Hagan was returned unexecuted (Dkt. No. 16), accompanied by a letter from CNYPC stating: "Please be advised ... that CNYPC has no record of either a current or a former employee" named Larry Hagan.
Plaintiff then sent a letter to Magistrate Judge Homer dated February 25, 2009 (Dkt. No. 21) requesting permission to file interrogatories and stating:
I am writing to you at this time praying for relief for permission to file Interrogatories so as to ascertain the main defendant in my action regarding his last name. I know for a fact that the first name of this individual whom I incorrectly named as ... Larry Hagan is correct on his first name. Furthermore, as I had stated within my complaint there was an Internal Investigation into this Incident, and I know for a fact that if your Honor would please allow me permission to file Interrogatories on the defendant I will then be able to identify the original John Doe as to defendant number one in my Amended Complaint. ... So I would respectfully request that the court grant me permission to file my Interrogatories so as to discover the real last name of this main defendant.
Plaintiff wrote another letter dated February 26, 2009 (Dkt. No. 23) giving more information about the employee, including a physical description. On March 3, 2009, Magistrate Judge Homer stated in a text order: "Plaintiff is granted permission to serve reasonable interrogatories on defendants in an effort to ascertain the name of the defendant." On ...