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Mayanduenas v. N.A. Harriman

United States District Court, N.D. New York

September 9, 2019

RIGER MAYANDUENAS [1], Plaintiff,
v.
N.A. HARRIMAN, et al., Defendants.

          RIGER MAYANDUENAS PLAINTIFF, PRO SE

          HON. LETITIA JAMES NEW YORK STATE ATTORNEY GENERAL - ALBANY ATTORNEY FOR DEFENDANT

          KONSTANDINOS D. LERIS, ESQ.

          REPORT AND RECOMMENDATION

          THÉRÈSE WILEY DANCKS United States Magistrate Judge.

         I. INTRODUCTION

         Pro se plaintiff Riger Mayanduenas ("Plaintiff"), a former New York State prison inmate, whose address is not currently known to the court, commenced this civil rights action asserting claims arising out of his confinement at Clinton Correctional Facility ("Clinton C.F."). On May 21, 2019, Plaintiff filed a "Statement of Release" advising the Court that he was released from the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), but failed to provide notification of his current address to both the Court and Defendants' counsel. Dkt. No. 38. Because Plaintiff has failed to comply with the Court's requirement that he notify the court of his further change of address, I recommend that this action be dismissed.

         II. BACKGROUND

         On September 26, 2018, Plaintiff commenced this action by filing a Complaint with an application to proceed in forma pauperis. Dkt. No. 1 ("Compl.") and Dkt. No. 2 ("IFP Application"). At the time he filed the Complaint, Plaintiff was confined at Attica Correctional Facility ("Attica C.F."). Compl. at 2. In a Decision and Order filed on October 26, 2018 (the "October Order"), the Court granted Plaintiff's IFP Application and reviewed the sufficiency of the Complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. See Dkt. No. 5. On the basis of that review, the Court found that the Eighth Amendment claims against defendants Officer Bigelow ("Bigelow"), C.O. Doe #1, C.O. Doe #2, and Sergeant Doe survived review and required a response. Id. at 8. The Court advised Plaintiff that the U.S. Marshal Service could not effect service upon an unidentified defendant and directed Plaintiff to take reasonable steps to identify the Doe defendants. Id. at 12. A summons was issued for Bigelow and, on November 26, 2018, Bigelow filed an acknowledgment of service. Dkt. Nos. 6 and 7.

         On December 3, 2018, Plaintiff filed an Amended Complaint identifying the Doe defendants. Dkt. No. 9 ("Am. Compl."). In a Decision and Order filed on January 22, 2019 (the "January Order"), the Court accepted the amended pleading and directed a response to the Eighth Amendment excessive force claims against Bigelow, C.O. Fuller, C.O. Jason Burdo, and C.O. Maurer and Eighth Amendment failure-to-protect claims against Nurse Administrator Harriman and Sergeant Dixon. See Dkt. No. 12. On January 29, 2019, summonses were issued to Fuller, Burdo, Maurer, Harriman, and Dixon. Dkt. No. 13.

         On February 5, 2019, Defendants filed a motion for summary judgment, in lieu of answering Plaintiff's Amended Complaint, seeking dismissal on the ground that Plaintiff failed to exhaust his administrative remedies. Dkt. No. 14. On March 15, 2019, Plaintiff opposed the motion. Dkt. No. 27.

         On May 17, 2019, Plaintiff filed a letter advising of his pending release from DOCCS' custody on May 21, 2019. Dkt. No. 34. On May 21, 2019, the Court issued an Order and Report-Recommendation recommending that Defendants' motion for summary judgment be denied. Dkt. No. 36. On the same day, the Court served the Order and Report-Recommendation on Plaintiff, via regular mail, at Attica C.F. Id.

         On May 23, 2019, the Court received Plaintiff's "Statement of Release," postmarked from Attica C.F. on May 21, 2019. Dkt. No. 37.

         On June 10, 2019, the Order and Report-Recommendation mailed to Plaintiff on May 21, 2019 was returned to the Court as undeliverable. Dkt. No. 40. The envelope was marked "Return to Sender - Released". Id.

         In a Decision and Order dated August 22, 2019 (the "August Order"), the Court accepted and adopted the Order and Report-Recommendation, in its entirety. Dkt. No. 41. On August 22, 2019, the Court attempted to mail a copy of the Decision and Order to Plaintiff at Attica C.F. Dkt. No. 41. On September 3, 2019, that ...


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