Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Franco v. Helsley

United States District Court, N.D. New York

June 16, 2017

MANUEL FRANCO, Plaintiff,
v.
C.O. HELSLEY, et al., Defendants.

          MANUEL FRANCO Plaintiff, pro se.

          DECISION AND ORDER

          GLENN T. SUDDABY Chief United States District Judge.

         I. INTRODUCTION

         Plaintiff Manuel Franco ("plaintiff") commenced this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Dkt. No. 1 ("Compl."). At the time plaintiff filed the action, he was confined at Rockland Psychiatric Center. See Id. In a Decision and Order filed September 20, 2016, the Court granted plaintiff's motion to proceed in forma pauperis and, following review of the complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A, the Court determined that the complaint failed to state a claim upon which relief could be granted and, therefore, was subject to dismissal. Dkt. No. 12 (the "September Order"). The Court also denied plaintiff's motion for appointment of counsel. Id. at 9-10. In light of his pro se status, plaintiff was afforded an opportunity to submit an amended complaint. Dkt. No. 12 at 10. Plaintiff was advised:

. . .should plaintiff fail to comply with the terms of this Decision and Order, within the above-specified time period, this action shall be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted[.]

Dkt. No. 12 at 10.

         On September 30, 2016 and October 6, 2016, the Court received four letters from plaintiff. Dkt. Nos. 13-16. In response, the Court issued a Text Order advising plaintiff that his submissions must comply with Local Rule 10.1. Dkt. No. 17. On October 24, 2016, the Court issued a Text Order directing the Clerk of the Court to provide plaintiff with an updated docket report, a copy of the complaint, the September Order, and a form complaint for use in Section 1983 actions. Dkt. No. 21. The Court extended plaintiff a second opportunity to comply with the September Order. Id. Plaintiff was directed to file an amended complaint on or before November 28, 2016. Id. On November 17, 2016, plaintiff filed a letter seeking information as to whether "the defendants have been notified as to the lawsuit." Dkt. No. 22. On November 21, 2016, the Court issued the following Text Order:

The Court is in receipt of plaintiff's recent submission inquiring if the defendants have been notified of the action (Dkt. No. 22). On September 20, 2016 in Dkt. No. 12, Chief Judge Suddaby ordered plaintiff to file an amended complaint because the original complaint did not state a claim. Upon receipt of plaintiff's amended complaint, the Court will review the submission, and if the Court finds that the amended complaint complies with the required Federal and Local Rules, Plaintiff will be notified of his obligation(s) regarding service of the amended complaint on the defendants. Until plaintiff files, and the court approves, plaintiff's amended complaint, no defendants will be served. In light of plaintiff's pro se status, plaintiff is granted a FINAL extension of time until 12/28/16 to comply with the Court's Decision and Order, Dkt. No. 12. If plaintiff fails to file an amended complaint on or before 12/28/16, this action will be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted, without further order of the Court. The Clerk of Court is directed to serve an updated copy of the docket on plaintiff with a courtesy copy of the Court's Decision and Order. The Clerk shall send plaintiff a form complaint available for use in Section 1983 actions.

Dkt. No. 23.

         A copy of the Text Order was sent to plaintiff at Rockland Psychiatric Center on November 21, 2016. See Dkt. No. 23. On November 28, 2016, the Court received a letter from plaintiff that indicated that, as of November 22, 2016, he was still confined at Rockland Psychiatric Center. Dkt. No. 24 at 5. On December 16, 2016, the Court received mail (containing a docket sheet originally mailed on November 29, 2016) returned as "undeliverable" with a notation indicating that, on or before December 12, 2016, Plaintiff had acquired a new forwarding address at South Beach Psychiatric Center. Dkt. No. 25. On February 8, 2017, after plaintiff failed to file an amended complaint, the Court issued Judgment dismissing the action in accordance with the September Order. See Dkt. Nos. 26 and 27. A copy of the Text Order and Judgment were forwarded to plaintiff at Rockland Psychiatric Center and South Beach Psychiatric Center. See id.

         Presently before the Court is plaintiff's motion to vacate the Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Dkt. Nos. 30 and 31 (submission in support). Plaintiff also filed a second motion for assignment of counsel. Dkt. No. 32.

         II. MOTION TO VACATE JUDGMENT

         Rule 60(b) provides:

Grounds for Relief from a Final Judgment, Order or Proceeding. On a motion and just terms, the court may relieve a party . . . from a final judgment, order, or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.