United States District Court, N.D. New York
JOSEPH GUARNERI, Pro se Cobleskill, NY., for Plaintiff.
ADAM G. GIANGRECO, ESQ., Assistant Count Attorney, THOMAS MARCELLE, Albany County Attorney, Albany, NY, for Defendant.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, Magistrate Judge.
This is a civil rights action brought by pro se plaintiff Joseph Guarneri, a former New York State prison inmate, pursuant to 42 U.S.C. § 1983. Although his complaint sets forth a variety of causes of action against multiple defendants, all that remains in the action is a single claim of excessive force asserted against a corrections officer employed at the prison facility in which plaintiff was confined at the relevant times. The defendant has responded to plaintiff's complaint by moving to dismiss the remaining claim based upon the existence of a parallel state court action involving the same parties and legal claim.
Both defendant's motion papers and a notice informing plaintiff of the deadline for opposing defendant's motion were mailed to him at the address listed in his complaint but have been returned as undeliverable. In addition, plaintiff has failed to respond to defendant's motion. Based upon these circumstances, I recommend that plaintiff's complaint be dismissed for failure to prosecute.
Plaintiff commenced this action in the Western District of New York on August 25, 2014. Dkt. No. 1. Plaintiff's complaint asserts a variety of claims against the Albany Correctional Facility and twelve individuals, including (1) deliberate medical indifference, (2) excessive force, (3) interference with access to the courts, (4) retaliation, and (5) denial of due process. See generally id. Because plaintiff's claims arise from events that occurred at the Albany Correctional Facility, which is located in this district, the action was transferred to this court by District Judge Richard J. Arcara on November 25, 2014. Dkt. No. 3.
Following the transfer of the matter to this district, plaintiff's complaint and accompanying application for leave to proceed in forma pauperis ("IFP") were forwarded to District Judge David N. Hurd for his consideration and a review of plaintiff's claims pursuant to 28 U.S.C. § 1915(e). On January 29, 2013, Judge Hurd issued an order granting plaintiff's IFP application and dismissing all of his claims with the exception of his excessive force cause of action against defendant John Crawley. Dkt. No. 5. Although the court mailed Judge Hurd's decision and order to plaintiff using the address listed in the complaint, it was returned as undeliverable on February 9, 2015. Dkt. No. 7.
On March 26, 2015, defendant Crawley filed a motion to dismiss plaintiff's sole remaining claim based on the abstention doctrine and the pendency of a parallel proceeding involving the same allegations commenced by plaintiff in New York State Supreme Court, Albany County. Dkt. No. 12-3 at 7-15; Dkt. No. 12-2.
Upon the filing of defendant's dismissal motion, the court issued a text notice on March 27, 2015, informing the parties that plaintiff's response to the motion would be due on April 21, 2015. Text Re-Notice Dated Mar. 27, 2015; see also Dkt. No. 14. The notice, which was forwarded by regular mail to plaintiff at the address listed in his complaint, was returned to the court on April 6, 2015, with the following notation:
RETURN TO SENDER
NOT DELIVERABLE AS ADDRESSED
UNABLE TO FORWARD[.]
Dkt. No. 17. Since the return of that notice, defendant's counsel has advised that an envelope sent to plaintiff by his office on March 27, 2015, containing copies of defendant's motion papers, was also returned as undelivered. Dkt. No. 18. Not surprisingly, despite the passage of the deadline to respond, ...