McCray v. Carter et al, No. 1:2021cv09051 - Document 29 (S.D.N.Y. 2022)

Court Description: OPINION & ORDER re: 16 MOTION to Dismiss, filed by Guerra, Carter, Horton. For the foregoing reasons, the Court grants the motion to dismiss all of McCray's claims against defendants Warden Carter, Warden Guerra, and Captain Hor ton. The Court respectfully directs the Clerk to close the pending motion at Docket 16 and mail a copy of this decision to plaintiff at the address on file. Based on a review of the docket, the one remaining defendant in the case-Captain John Doe-h as not been served. Cognizant of the Second Circuit's "general policy of disapproving sua sponte dismissals of prose prisoner petitioners before service and appearance," the Court here dismisses only the claims as asserted against Wa rden Carter, Warden Guerra, and Captain Horton. Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (citing Massop v. Coughlin, 770 F.2d 299,301 (2d Cir. 1985)). It is hereby ORDERED that McCray advise the Court in writing why he failed to serve the Summons and Complaint within the 90-day period on Captain John Doe, or, if McCray believes that Captain John Doe has been served, when and in what manner such service was made. It is further ORDERED that if the Court does not receive any written c ommunication from McCray by November 3, 2022, showing good cause why such service was not made within 90 days, the Court will dismiss without prejudice the claims against Captain John Doe and direct the Clerk of Court to close the case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 10/27/2022) (va)