Ramirez v. Smith

Background

By an August 19, 2019 order, the Court granted Plaintiff Carlos Gaspar Ramirez leave to file a second amended complaint. The Court required him to provide enough facts to support claims concerning his conditions of confinement, excessive force, and an unlawful search.

The Clerk mailed the August 19 order to Ramirez at the Anna M. Kross Center. The New York City Department of Correction returned it after reporting that Ramirez had been discharged. A search of New York State correctional records showed that Ramirez was incarcerated at Ulster Correctional Facility, so the Court mailed the order there on September 19, 2019. The opinion states that this mailing was not returned.

On October 3, 2019, Jose Joaquin Ramirez, who was not an attorney and was not a party to the case, asked to intervene to help prepare the second amended complaint and sought an extension of time on Plaintiff's behalf. The Court denied his request to intervene. The Court again told Plaintiff that he had to promptly notify the Court of address changes and that the action could be dismissed if he failed to do so. The Court extended the deadline to December 19, 2019, and stated that failure to comply would result in dismissal of the amended complaint. The October 4 order was mailed to Ramirez at Gowanda Correctional Facility, and the opinion states that the mailing was not returned and that correctional records showed Ramirez remained there.

Ruling

Ramirez did not file a second amended complaint. The Court therefore dismissed the amended complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), a screening provision applicable to a case filed without paying the filing fee. The opinion does not state whether this dismissal was with or without prejudice.

The Court also certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied permission to appeal without paying the filing fee. The Clerk was directed to mail Ramirez a copy of the order and record service on the docket.