Opinion
22-CV-6107 (KMK)
08-19-2022
LOUIS ANDREW DiDONNA, Plaintiff, v. HAROLD L. SMITH, et al. Defendants.
ORDER OF SERVICE
KENNETH M. KARAS, United States District Judge
Plaintiff, who is currently detained in Pike County Jail in Lords Valley, Pennsylvania, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants provided him with inadequate medical care when he was detained in Sullivan County Jail. On August 5, 2022, Plaintiff filed an Amended Complaint. (See Am. Compl. (Dkt. No. 7).) The Amended Complaint names the following defendants: Sullivan County Jail Warden Harold L. Smith (“Smith”); the State of New York; Sullivan County; Sullivan County Jail; Corporal Compasso (“Compasso”); Deputies Fancher (“Fancher”) and Lawrence (“Lawrence”); “Sullivan County Medical Department”; Sullivan County Jail Nurses Starner (“Starner”), Moore (“Moore”), and Santini (“Santini”); Prime Care Medical Corporation, which the Court understands to be PrimeCare Medical Inc. (“PrimeCare”); PrimeCare Supervisor “Kim Doe”; PrimeCare Nurses Lyn Elkins (“Elkins”) and Christine Bermington (“Bermington”); PrimeCare “Nurse Jane Doe that worked at the Sullivan county jail on 11/14/2021”; “Doctor John Doe that worked at the Sullivan county jail on 8/16/2021”; and “John Doe Supervisor that worked at the jail on the ea[r]ly morning of 8/02/2021” (collectively, “Defendants”).
By order dated July 21, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court (1) dismisses Plaintiff's claims against the State of New York, Sullivan County Jail, and “Sullivan County Medical Department”; (2) directs service on the remaining named defendants; (3) directs Sullivan County and PrimeCare to assist in identifying Kim Doe, the John Doe Supervisor working at Sullivan County Jail on August 2, 2021, and the Jane Doe Nurse working at Sullivan County Jail on November 14, 2021; and (4) denies Plaintiff's application for the Court to appoint pro bono counsel without prejudice to renewal at a later time.
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).
I. Standard of Review
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See FED. R. CIV. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original) (quotation marks omitted).
II. Discussion
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).
A. The State of New York
“[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states' Eleventh Amendment immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). “The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id. This immunity shields States from claims for money damages, injunctive relief, and retrospective declaratory relief. See Green v. Mansour, 474 U.S. 64, 72-74 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984). New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states' immunity in enacting § 1983. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977).
The Court therefore dismisses Plaintiff's claims against the State of New York because Plaintiff seeks monetary relief from a defendant that is immune from such relief and, therefore, the Court lacks subject matter jurisdiction. See 28 U.S.C. § 1915(e)(2)(B)(iii); FED. R. CIV. P. 12(h)(3); see Close v. New York, 125 F.3d 31, 38-39 (2d Cir. 1997) (“[U]nless New York waived its immunity, the district court lacked subject matter jurisdiction.”).
B. Sullivan County Jail and “Sullivan County Medical Department”
The Court must also dismiss Plaintiff's claims against Sullivan County Jail and “Sullivan County Medical Department.” Section 1983 provides that an action may be maintained against a “person” who has deprived another of rights under the “Constitution and Laws.” 42 U.S.C. § 1983. Sullivan County Jail and “Sullivan County Medical Department” are not “persons” within the meaning of § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 65-71 (1989) (state is not a “person” for the purpose of § 1983 claims); Kerr v. Cook, No. 21-CV-93, 2021 WL 765023, at *4 (D. Conn. Feb. 26, 2021) (holding that correctional facility “medical staff” is a not a person under § 1983); Connor v. Hurley, No. 00-CV-8354, 2004 WL 885828, at *3 (S.D.N.Y. Apr. 26, 2004) (holding that Green Haven Correctional Facility “medical staff” is not a person under § 1983); Whitley v. Westchester Cnty. Corr. Fac. Admin., No. 97-CV-420, 1997 WL 659100, at *7 (S.D.N.Y. Oct. 22, 1997) (correctional facility or jail not a “person” within the meaning of § 1983).
The Court therefore dismisses Plaintiff's claims against Sullivan County Jail and “Sullivan County Medical Department” for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
C. Service on Remaining Named Defendants
Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP).
Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that summonses be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the amended complaint until the Court reviewed the amended complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued.
To allow Plaintiff to effect service on Smith, Sullivan County, PrimeCare, Compasso, Fancher, Lawrence, Starner, Moore, Santini, Elkins, and Bermington through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for these Defendants. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon Defendants.
If the Amended Complaint is not served within 90 days after the date the summonses are issued, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service).
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.
D. Valentin Order
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the Amended Complaint, Plaintiff supplies sufficient information to permit Sullivan County or PrimeCare to identify PrimeCare Supervisor “Kim Doe”; PrimeCare “Nurse Jane Doe that worked at the Sullivan county jail on 11/14/2021”; and “John Doe Supervisor that worked at the jail on the ea[r]ly morning of 8/02/2021.” It is therefore ordered that the County Attorney of Sullivan County, who is the attorney for and agent of the Sullivan County, or the attorney for PrimeCare must ascertain the identity of each John or Jane Doe whom Plaintiff seeks to sue here and the address where the defendant may be served. The County Attorney or the attorney for PrimeCare must provide this information to Plaintiff and the Court within sixty days of the date of this order.
Within thirty days of receiving this information, Plaintiff must file a second amended complaint naming the John or Jane Doe defendants. The second amended complaint will replace, not supplement, the original and amended complaints. A second amended complaint form that Plaintiff should complete is attached to this Order. Once Plaintiff has filed a second amended complaint, the Court will screen the second amended complaint and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the addresses for the named John or Jane Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service.
The Court declines to issue a Valentin order as to “Doctor John Doe that worked at the Sullivan county jail on 8/16/2021” at this time because Plaintiff has not provided sufficient identifying information or alleged any facts explaining how this defendant was personally involved in violating his rights.
E. Motion for the Appointment of Pro Bono Counsel
On August 11, 2022, the Court received from Plaintiff a motion for the Court to appoint pro bono counsel. (See Dkt. No. 9.) The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for the appointment of pro bono counsel is denied without prejudice to renewal at a later date.
III. Conclusion
The Court dismisses Plaintiff's claims against the State of New York because Plaintiff seeks monetary relief from a defendant that is immune from such relief and, therefore, the Court lacks subject matter jurisdiction. See 28 U.S.C. § 1915(e)(2)(B)(iii); FED. R. CIV. P. 12(h)(3); see Close v. New York, 125 F.3d 31, 38-39 (2d Cir. 1997) (“[U]nless New York waived its immunity, the district court lacked subject matter jurisdiction.”).
The Court dismisses Plaintiff's claims against Sullivan County Jail and “Sullivan County Medical Department” for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Clerk of Court is instructed to issue summonses for Smith, Sullivan County, PrimeCare, Compasso, Fancher, Lawrence, Starner, Moore, Santini, Elkins, and Bermington, complete the USM-285 forms with the addresses for these defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service.
The Clerk of Court is directed to mail a copy of this order and the Amended Complaint to the Sullivan County Attorney at: 100 North Street, P.O. Box 5012, Monticello, NY 12701, and to PrimeCare Medical, Inc. c/o Sullivan County Jail at 58 Old Rt. 17, Monticello, NY 12701. A “Second Amended Complaint” form is attached to this Order.
The Court denies without prejudice Plaintiff's motion for the appointment of pro bono counsel. The Clerk of Court is directed to terminate the pending motion at Dkt. No. 9.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
The Clerk of Court is further directed to mail an information package and a copy of this Order to Plaintiff.
SO ORDERED.
DEFENDANTS AND SERVICE ADDRESSES
1. Warden Harold L. Smith Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701
2. PrimeCare Medical, Inc. c/o Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701
3. Sullivan County Office of the County Attorney 100 North Street P.O. Box 5012 Monticello, NY 12701
4. Corporal Compasso Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701
5. Deputy Fancher Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701
6. Deputy Lawrence Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701
7. Nurse Julie Starner Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701
8. Nurse Wendy Moore Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701
9. Nurse Santini Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701
10. Nurse Lyn Elkins Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701
11. Nurse Christine Bermington Sullivan County Jail 58 Old Rt. 17 Monticello, NY 12701