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Balkum v. Leonard

United States District Court, W.D. New York

December 15, 2014

WALTER BALKUM, 04-B-0527, Plaintiff,
v.
JOHN P. LEONARD, TOM W. TURNBULL, K. HULETT, C.O. MEEKUS, LT. RICHIR, and JOHN DOE, Defendants

Walter Balkum, Plaintiff, Pro se, Alden, NY.

For John P. Leonard, Tom W. Turnbull, K. Hulett, C.O. Meekus, Lt. Richards, Defendants: Hillel David Deutsch, LEAD ATTORNEY, N.Y.S. Attorney General's Office, Department of Law, Rochester, NY.

Page 368

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 25, 2014, Plaintiff Walter Balkum (" Plaintiff" ), an inmate currently incarcerated at the Wende Correctional Facility, fded this pro se action seeking relief under 42 U.S.C. § 1983, alleging that on June 17, 2011, Defendants Leonard, Hulett, Meekus, Turnbull, and a John Doe " physically attacked" Plaintiff while Plaintiff was in full mechanical restraints, causing physical, mental, and emotional injuries. (Dkt. 1). Plaintiff also alleges that he informed Defendant Richir of the alleged attack, but Defendant Richir " failed to correct the wrong acts." ( Id. at 7).

On July 9, 2014, this Court directed the Attorney General of the State of New York, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), to ascertain the full name of the John Doe Defendant Plaintiff seeks to sue. (Dkt. 3 at 1). In a letter motion dated August 18, 2014, Plaintiff stated that Assistant Attorney General Debra Martin informed Plaintiff by letter dated August 13, 2014, that she was unable to identify the John Doe Defendant. (Dkt. 4). As a result, Plaintiff moved for additional time to ascertain the name of " John Doe." ( Id.).

Defendants Hulett, Leonard, Meekus, and Turnbull filed their answer to the complaint on October 31, 2014. (Dkt. 7). Also on that date, Defendant Richir filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. 8).

On November 3, 2014, this Court issued a motion scheduling order directing that responses to either motion be filed no later than December 3, 2014. (Dkt. 9). Plaintiff was specifically advised that his claims as to Defendant Richir may be dismissed without a trial if Plaintiff failed to respond to the motion. ( Id.). Neither party has submitted a response to either of the pending motions.

For the following reasons, Plaintiff's motion for an extension of time to discover the identity of the John Doe Defendant is granted, and Defendant Richir's motion to dismiss is denied.

II. PLAINTIFF'S MOTION FOR AN EXTENSION

According to Plaintiff, Assistant Attorney General Debra Martin was unable to

Page 369

ascertain the identity of " John Doe." (Dkt. 4). As a result, Plaintiff has requested additional time to attempt to identify " John Doe" through ...


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