United States District Court, N.D. New York
FRANCO Plaintiff, pro se.
DECISION AND ORDER
T. SUDDABY Chief United States District Judge.
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.
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
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
Dkt. No. 23.
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.
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.
MOTION TO VACATE JUDGMENT
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 ...