Lyons v. City of New York et al
| Michael A. Lyons |
| City of New York, City of New York Dept. of Correction and Turham Gumusdere |
| 1:2014cv09697 |
| December 1, 2014 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Queens |
| Unassigned |
| Prison Condition |
| 42 U.S.C. ยง 1983 |
| None |
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Filing
37
MEMORANDUM OPINION AND ORDER: Accordingly, for the foregoing reasons, Defendants' motion to dismiss is GRANTED. Although that motion was filed only on behalf of the City and Warden Gumusdere, the Court's conclusion that Lyons's clai ms against them fail as a matter of law applies with equal force to Lyons's claim against the remaining John Doe Defendant. Additionally, Lyons's claims against that John Doe Defendant are subject to dismissal for an independent reason. The Court ordered Lyons to file a Second Amended Complaint naming the John Doe defendants within thirty days of receiving information about their identities from the Citys counsel (see Docket No. 8), and subsequently reminded him of that obligatio n (see Docket No. 22). Lyons appears to believe that he did so (see Docket No. 23), but he did not. More importantly, he also failed to serve the John Doe Defendant identified by the City within the deadline set by Rule 4(m) of the Federal Rules o f Civil Procedure. Accordingly, Lyons's claims against the John Doe captain must be and are dismissed for failure to serve as well. See Wilson v. Doe, No. 14-CV-6465 (PAC) (JLC), 2015 WL 4619936, at *2 (S.D.N.Y. July 29, 2015) (dismissing c laims for failure to comply with a court order and failure to timely identify and serve a John Doe defendant despite the Court's efforts to assist him). The only remaining question is whether Lyons should be given another opportunity to amen d his complaint. Although leave to amend a complaint should be freely given "when justice so requires," Fed. R. Civ. P. 15(a)(2), it is "within the sound discretion of the district court to grant or deny leave to amend," McCar thy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). Here, Lyons was previously directed to, and did, file an amended complaint to name the individuals who were personally involved in the alleged violation of his rights. (Docket Nos. 5, 6). Thereafter, he was directed to, but did not, file another amended complaint to name the John Doe defendant who was identified by the City pursuant to the Court's Valentin Order. (Docket Nos. 8, 22). And finally, Lyons was expressly grant ed leave to amend his complaint to cure the deficiencies raised in Defendant's motion to dismiss and explicitly warned that he would not be given any further opportunity" to do so. (Docket No. 32). Lyons, however, did not accept that in vitation; nor has he "requested permission to file a Second Amended Complaint." Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug.15, 2014). As "Plaintiff's failure to fix deficiencies in his previous ple adings is alone sufficient ground to deny leave to amend sua sponte," the Court declines to grant such leave here. Transeo S.A.R.L. v. Bessemer Venture Partners VI L.P., 936 F. Supp. 2d 376, 415 (S.D.N.Y. 2013). Accordingly, leave to amend is denied and the Amended Complaint is dismissed with prejudice. The Clerk of Court is directed to mail a copy of this Memorandum Opinion and Order to Plaintiff and to close this case. The Court certifies under 28 U.S.C. § 1915(a)(3) that any a ppeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (As further set forth in this Order.) (Signed by Judge Jesse M. Furman on 6/30/2016) (cf)
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