United States District Court, W.D. New York
ANTWAN M. GREEN, Plaintiff,
CHIEF HARRIS, SERGEANT WEBSTER, ORVILLE, Nurse Practitioner, JOHN DOE HOLDING OFFICER, NURSE JANE DOE, SERGEANT CARNEY, SERGEANT ANDERSON, SERGEANT SMACNICK, D. BROWN, Holding Center Officer, SHERMAN, Holding Center Officer, JARNOT, Holding Center Officer, and LINEN DEPARTMENT DEPUTY, Defendants.
DECISION AND ORDER
ELIZABETH A. WOLTORD UNITED STATES DISTRICT JUDGE
Antwan M. Green ("Plaintiff), while he was an inmate
confined at Erie County Correctional Facility, filed multiple
civil actions asserting claims under 42 U.S.C. § 1983
concerning the conditions of his confinement at the Erie
County Holding Center as a pre-trial detainee. By Order dated
October 27, 2015, two other actions were consolidated with
this case. (See Dkt. 4). Plaintiff was directed to
incorporate the claims from all three actions into one
amended complaint. (Id. at 8-9). Plaintiffs first
amended complaint was stricken by the Court (see
Dkt. 13), and he filed a second amended complaint on March
30, 2016 (Dkt. 16).
Court reviewed the second amended complaint pursuant to 28
U.S.C. §§ 1915(e) and 1915A, and, by Order dated
August 17, 2016, dismissed some claims and allowed others to
go forward. (See Dkt. 23). The following claims have
been permitted to proceed: (1) due process claims against
Defendants Webster and Harris for preventing Plaintiff from
calling witnesses on his own behalf during a disciplinary
hearing; (2) cruel and unusual punishment based on conditions
of confinement claim against Defendants Anderson, Carney, and
Harris for the unreasonably cold temperature of Plaintiffs
cell; (3) conditions of confinement claim against Defendants
Jarnot and Linen Department Deputy for their failure to
provide Plaintiff with a sanitary blanket; (4) unsanitary
conditions claim against Defendant John Doe Holding Center
Officer; (5) denial of medical treatment claim against
Defendants Orville and Nurse Jane Doe; (6) violation of equal
protection rights claim against Defendant Nurse Jane Doe; and
(7) retaliation and condition of confinement claims against
Defendants Sherman, Smacnick, Nurse Jane Doe, and Brown.
(See Dkt. 23). The Court granted Plaintiff leave to
amend a denial-of-access-to-courts claim, based on alleged
restricted access to legal books and research, and directed
Plaintiff to file a third amended complaint incorporating all
his permitted claims. (See id.).
Plaintiffs Third Amended Complaint
before the Court is Plaintiffs third amended complaint. (Dkt.
29). Upon review pursuant to 28 U.S.C. §§ 1915(e)
and 1915A, the Court finds that Plaintiff has complied with
the Court's directive to incorporate all of his remaining
claims against the remaining Defendants into one pleading.
extent that Plaintiff has incorporated some of the factual
allegations related to claims that were previously dismissed,
the Court liberally construes these repeated allegations as a
request by Plaintiff to reconsider the dismissal of said
claims. The Court has reviewed this request and declines to
reconsider its dismissal of these claims.
Court further notes that although Plaintiff was granted leave
to amend his access-to-court claim, he has not done so.
Therefore, that claim is dismissed. In all other respects,
the third amended complaint is permitted to proceed in
accordance with the Court's August 17, 2016, Order.
(See Dkt. 23).
in the third amended complaint, Plaintiff lists three
Defendants as Linen Department Deputy, Nurse Jane Doe, and
John Doe Holding Center Officer. In light of Plaintiff s
uncertainty as to the names of these Defendants, pursuant to
Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), the
Court requests that the Erie County Attorney ascertain the
full names of these three Defendants. The Erie County
Attorney is also requested to provide the addresses where
these Defendants can currently be served. The Erie County
Attorney need not undertake to defend or indemnify these
individuals at this juncture. This Order merely provides a
means by which Plaintiff may name and properly serve
Defendants as instructed by the Second Circuit in
Valentin. HI- Plaintiffs Other
Motions In addition to filing the third amended
complaint, Plaintiff has filed two motions: a Motion for
Protective Order (Dkt. 30), and a Motion for Reconsideration
of his request for the appointment of counsel (Dkt. 31).
Plaintiff fails to state a basis for either motion; he also
fails to provide any argument or factual support for either
motion. (See Dkt. 30; Dkt 31).
previously updated his address with the Court, indicating
that he has been released from custody. (See Dkt.
28). Therefore, his motion for injunctive relief against
Defendants is rendered moot. See Pugh v. Goord, 571
F.Supp.2d 477, 490 (S.D.N.Y. 2008) (finding a plaintiffs
claims for injunctive and declaratory relief against prison
officials moot in light of the plaintiffs release from
motion for reconsideration is denied without prejudice. The
third amended complaint has not been served, nor has any
Defendant appeared in the case. As such, Plaintiffs request
for the appointment of counsel is premature. See
Pennefather v. N.Y. State Unified Court Sys., No. 08
CIV. OO98(DAB), 2008 WL 2276521, at *1 (S.D.N.Y. June 3,
2008) (noting that a motion to appoint counsel was premature
because service of the complaint had not been completed).
foregoing reasons, IT IS HEREBY ORDERED, that the Clerk of
Court is directed to file Plaintiffs papers and to cause the
United States Marshal to serve copies of the summons, third
amended complaint, and this Order upon Defendants Harris,
Webster, Orville, Carney, Anderson, Smacnick, Brown, Sherman,
and Jarnot; and it is further
that the Erie County Attorney is hereby requested to produce
the information specified above regarding the identities of
Defendants John Doe Holding Center Officer, Nurse Jane Doe,
and Linen Department Deputy within 30 days of the date of
this Order. The information should be sent to the Pro Se