-RML Jones v. The New York State Supreme Court et al, No. 1:2010cv03198 - Document 4 (E.D.N.Y. 2010)
Court Description: ORDER GRANTING Pro Se Plaintiff's 2 Motion for Leave to Proceed in forma pauperis AND GRANTING LEAVE TO AMEND THE COMPLAINT BY NOVEMBER 5, 2010 -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, while the complaint could be dismissed at this time, in light of plaintiff's pro se status, he is granted thirty (30) days from the date of this Order, i.e., until November 5, 2010, to file an amended complaint. All further proceedings shall be st ayed for thirty (30) days, but not later than November 5, 2010. If plaintiff fails to amend his complaint by November 5, 2010, as directed by this Order, and/or the amended complaint fails to correct the deficiencies of the instant complaint or othe rwise fails to satisfy pleading or jurisdictional requirements, the complaint will be dismissed with prejudice, without any further proceedings. For the convenience of plaintiff, and in light of his pro se status, instructions on how to amend a complaint are attached to this Order. The issuance of a summons and service of the instant complaint are held in abeyance pending the filing of an amended complaint. The court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal fr om this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order and Instructions on How to File a Complaint to pro se plaintiff. SO ORDERED by Judge Dora Lizette Irizarry on 10/6/2010. (Irizarry, Dora)
Download PDF
<![CDATA[
-RML Jones v. The New York State Supreme Court et al Doc. 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------x WILLIAM JONES, pro se, : : Plaintiff, : : -against: : THE NEW YORK STATE SUPREME COURT; : ANDREW CUOMO, Attorney General of the : State of New York, : : Defendants. : -----------------------------------------------------------------x DORA L. IRIZARRY, U.S. District Judge: MEMORANDUM AND ORDER 10-CV-3198 (DLI) Plaintiff William Jones, currently incarcerated at Rikers Island, filed this pro se action on July 7, 2010. Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) is granted. For the reasons discussed below, plaintiff is granted thirty (30) days from the entry date of this Order, i.e., until November 5, 2010, to file an amended complaint. The issuance of a summons and service of the instant complaint are held in abeyance pending the filing of an amended complaint. Should plaintiff fail to replead in a timely manner, and/or the amended complaint fails to correct the deficiencies of the instant complaint or otherwise fails to satisfy pleading or jurisdictional requirements, the complaint will be dismissed with prejudice. DISCUSSION In reviewing plaintiff’s complaint, the court is mindful that, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C. § 1915A, a district court “shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or employee Dockets.Justia.com of a governmental entity.” 28 U.S.C.§ 1915A. Upon review, a district court shall dismiss a prisoner complaint sua sponte if the complaint is “frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A (b). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, plaintiff must provide a short, plain statement of claim against each defendant named so that they have adequate notice of the claims against them. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). Plaintiff must provide facts sufficient to allow each defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. See Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005) (defining “fair notice” as “‘that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.’”) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2dCir. 1991). Plaintiff’s complaint contains absolutely no facts, allegations or legal theories to support his claim that various New York Penal Law statutes are unconstitutional, nor does the complaint explain how those statutes harmed him, or how the defendants are involved in this matter. Therefore, defendants are unable to respond meaningfully to the complaint. While plaintiff’s complaint could thus be dismissed, plaintiff is granted thirty (30) days from the date of this Order, i.e., until November 5, 2010, to file an amended complaint. The amended complaint must be captioned as an “Amended Complaint,” name all individual defendants in the caption, and bear the same docket number as this Order. The amended complaint must also comply with Rule 8(a) of the Federal Rules 2 of Civil Procedure. Plaintiff must name as proper defendants those individuals who have some personal involvement in the actions he alleges in the amended complaint and provide the dates and locations for each relevant event. If plaintiff does not know the names of the individuals, he may identify each of them as John Doe or Jane Doe. To the best of his ability, plaintiff must also set forth a legal basis to support his claims. Plaintiff is further directed to state if he has a pending state court criminal action, and the current status of those proceedings. All further proceedings shall be stayed for thirty (30) days, but not later than November 5, 2010. If plaintiff fails to amend his complaint by November 5, 2010, as directed by this Order, and/or the amended complaint fails to correct the deficiencies of the instant complaint or otherwise fails to satisfy pleading or jurisdictional requirements, the complaint will be dismissed with prejudice. For the convenience of plaintiff, and in light of his pro se status, instructions on how to amend a complaint are attached to this Order. The issuance of a summons and service of the instant complaint are held in abeyance pending the filing of an amended complaint. The court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. _______________/S/________________ DORA L. IRIZARRY United States District Judge Dated: Brooklyn, New York October 6, 2010 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK PRO SE OFFICE U.S. COURTHOUSE 225 CADMAN PLAZA EAST BROOKLYN, NEW YORK 11201 HOW TO AMEND YOUR COMPLAINT Ifyou have forgotten to state an important matter in your complaint, you discover something new after you filed your complaint, you want to add a defendant, or you want to insert the true name ofa "John Doe" defendant, you may be able to file an amended complaint. An amended complaint does not just add to the first complaint. Once you file an amended complaint it entirely replaces your original complaint. Amendments to a complaint are governed by Rule 15(a) of the Federal Rules of Civil Procedure. Rule 15(a) provides that: A party may amend the party's pleading once as a matter ofcourse at any time before a responsive pleading is served or, ifthe pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any ,time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. This means that if the defendant has not yet filed an answer to your complaint, you can file one amended complaint without permission of the Court. If the defendant has filed a motion to dismiss but has not filed an answer, you are still entitled to file one amended complaint without permission. (you are only permitted to file one amended complaint before defendant files an answer; if you wish to file a second amended complaint before defendant files an answer, you must obtain defendant's consent or you must obtain permission from the Court). However, ifthe defendant has already filed his answer to your complaint, you must get written consent from the defendant or permission ofthe Court before amending your complaint. Ifthe defendant agrees in writing that you can file an amended complaint, you must ask the judge to write "So Ordered" on the written consent, indicating that the judge has approved the consent. If the defendant does not give you written consent, you can ask permission from the Court by filing a motion to amend the complaint and including a copy ofthe proposed amended complaint with your motion papers. Instructions for preparing a motion are attached and are available separately. If you file an amended complaint. It must be captioned as an "Amended Complaint." FILING AND SERVING THE AMENDED COMPLAINT SERVICE OF THE AMENDED COMPLAINT BEFORE THE ORIGINAL COMPLAINT HAS BEEN SERVED If you decide to amend your complaint before defendant has been served with your original complaint and summons, you should serve the amended complaint on defendant and file the original amended complaint with the Pro Se Office as follows: 1. Make copies of your amended complaint. 2. Keep one copy for your own records. 3. File the original of your amended complaint with the Pro Se Office. 4. Ifyou have not added new defendants in your amended complaint, use the summons that was originally issued by the Court. 5. Have a of the summons and a of the amended complaint served on each defendant by someone who is over eighteen and is not a party to the action. The original summons with the seal of the court embossed on it must be returned to the Court, so do not serve the original summons on any defendant. 6. Have the person who serves the summons and amended complaint on each defendant complete an affidavit or affirmation of service ofprocess form. 7. Make a copy ofthe affidavit or affirmation of service ofprocess and keep it for your own records. 8. Attach the original affidavit or affirmation of service to the original summons. 9. File the original summons and the affidavit or affirmation ofservice ofprocess with the Pro Se Office. SERVICE OF THE AMENDED COMPLAINT AFTER THE ORIGINAL COMPLAINT HAS BEEN SERVED ON ALL DEFENDANTS Ifyou decide to amend your complaint afterthe defendant has been properly served with your original complaint and summons (and you have not added any new defendants in your amended complaint), you should take the following steps: 1. Make copies of your amended complaint. " 2 2. Keep one copy for your own records. 3. Send a copy of your amended complaint to the attorney for each defendant by ordinary first-class mail. 4. Complete an affidavit or affinnation of service of process fonn stating that the amended complaint was mailed to each defendant. 5. Make a copy ofthe affidavit or affirmation ofservice ofprocess and keep it for your own records. 6. File the original amended complaint and your original affidavit or affinnation of service of process with the Pro Se Office. DELIVERY OF THE AMENDED COMPLAINT AFTER THE ORIGINAL COMPLAINT HAS BEEN SERVED ON SOME DEFENDANTS BUT NOT ON OTHERS If you decide to amend your complaint after some defendants have been served with your original complaint and summons but before other defendants have been served (or you have added new defendants in your amended complaint), you should take the following steps: 1. Make copies of your amended complaint. 2. Keep one copy for your own records. 3. Send a copy of your amended complaint by ordinary first-class mail to each defendant who has already been served. 4. Complete an affidavit or affinnation of service of process fonn stating that the amended complaint and summons was mailed to each defendant. 5. Make a copy ofthe affidavit or affirmation ofservice ofprocess and keep it for your own records. 6. File the original amended complaint and original affidavit or affinnation of service of process with the Pro Se Office. 7. If you have not added new defendants in your amended complaint, you must serve the amended complaint on the defendant who has not yet been properly served. If you have added new defendants, the Court will issue an amended summons which must be served with the amended complaint. Ifyou are adding defendants, you must bring this to the attention of the Pro Se Writ Clerk. 3 8. Have a ofthe amended summons and a £QnY ofthe amended complaint served pursuant to Rule 4 of the Federal Rules on any defendant who was not previously served with the original complaint. 9. Have the person who served the amended summons and the amended complaint to each ofthe new defendants complete an affidavit or affirmation ofservice ofprocess form. 10. Make a copy of the affidavit or affIrmation of service ofprocess. II. Attach the affidavit or affirmation of service of process to the amended summons. 12. File the original amended summons and the original affidavit or affirmation of service of process with the Pro Se Office. Ifyou have questions regarding any ofthe procedures listed above, please contact the Pro Se Office at 718-613-2665. 11/28/05 4 Tara D. Hunter-Hicks and Ralph Vega, Jr. Pro Se Writ Clerks Attn: Pro Se Office United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201 8:30AM - 5:00PM (718)613-2665
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
