McLean v. Ferguson et al, No. 9:2020cv01115 - Document 43 (N.D.N.Y 2021)

Court Description: DECISION AND ORDER: ORDERED that plaintiff's claims asserted against defendant Rowick in plaintiff's amended complaint are DISMISSED without prejudice. ORDERED that the Clerk of the Court shall TERMINATE defendant Rowick from the docket as a party. Signed by Senior Judge Thomas J. McAvoy on August 16, 2021. {order served via regular mail on plaintiff}(nas)

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McLean v. Ferguson et al Doc. 43 Case 9:20-cv-01115-TJM-TWD Document 43 Filed 08/16/21 Page 1 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK BAHSID McLEAN, Plaintiff, v. 9:20-CV-1115 (TJM/TWD) AMY FERGUSON, et al., Defendants. APPEARANCES: BAHSID McLEAN 16-A-5033 Plaintiff, pro se Auburn Correctional Facility P.O. Box 618 Auburn, NY 13021 HON. LETITIA JAMES New York State Attorney General Attorney for Defendants Ferguson, Koenigsmann, Visalli, and Fennessey The Capitol Albany, NY 12224 AIMEE COWAN, ESQ. Assistant Attorney General THOMAS J. McAVOY Senior United States District Judge DECISION AND ORDER Plaintiff Bahsid McLean commenced this action in September 2020. Plaintiff asserted claims arising from allegations that defendants violated his constitutional rights and state law based on the medical treatment he received while he was confined in Mid-State Correctional Facility. See generally Dkt. Nos. 1, 4. Although plaintiff's original complaint named some "John Doe" defendants, plaintiff filed an amended complaint or about December 30, 2020, Dockets.Justia.com Case 9:20-cv-01115-TJM-TWD Document 43 Filed 08/16/21 Page 2 of 3 identifying those individuals by name. Dkt. No. 11. The amended complaint is the operative pleading in the action. Upon review of the amended complaint under 28 U.S.C. § 1915 and 28 U.S.C. § 1915A, this Court determined that some of plaintiff's claims asserted in the amended complaint survived review and required a response. Dkt. No. 20. Accordingly, in light of plaintiff's in forma pauperis status, the Court issued summonses for the defendants, including "Nurse Rowick," and directed the United States Marshal Service to effectuate service on plaintiff's behalf. See Dkt. Nos. 4, 20. The record now reflects that all of the defendants except defendant Nurse Rowick have been served with process and have appeared through counsel in the action. See Dkt. Nos. 32, 36. On June 25, 2021, the Court issued an Order to Show Cause to plaintiff directing him to file an affidavit with the Court showing cause why the claims asserted against defendant Rowick should not be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Dkt. No. 38. Plaintiff was warned that his "failure to comply with th[e Order to Show Cause would] result in the dismissal of the claims asserted against defendant Rowick for failure to serve." Id. at 3-4. As of today's date, there is no record that service of process has been effectuated on defendant Rowick, nor has plaintiff provided the Court with good cause for the failure to complete service upon that individual. WHEREFORE, it is hereby ORDERED that plaintiff's claims asserted against defendant Rowick in plaintiff's amended complaint are DISMISSED without prejudice; and it is further 2 Case 9:20-cv-01115-TJM-TWD Document 43 Filed 08/16/21 Page 3 of 3 ORDERED that the Clerk of the Court shall TERMINATE defendant Rowick from the docket as a party; and it is further ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff. IT IS SO ORDERED. DATED: August 16, 2021 3

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