Opinion
20-CV-4365 (AJN)
06-25-2020
LUIS JAIME, Plaintiff, v. CAPTAIN KIRKLAND, Shield No. 1778; CAPTAIN MORALES; CAPTAIN PHILLIPS; CORRECTION OFFICER JENNINGS; NEW YORK CITY DEPARTMENT OF CORRECTION, Defendants.
ORDER OF SERVICE :
Plaintiff, currently incarcerated in the Otis B. Bantam Center on Rikers Island, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants assaulted him and denied him access to the courts. By order dated June 9, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP).
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).
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner's IFP complaint, or any portion of the complaint, 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. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
DISCUSSION
A. Claims Against the New York City Department of Correction (DOC)
The Court must dismiss Plaintiff's claims against DOC because an agency of the City of New York, like DOC, is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 ("[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law."); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); Tatum v. City of New York, No. 19-CV-2581, 2019 WL 1877385, at *1 (S.D.N.Y. Apr. 26, 2019) (the HRA is not a suable entity); see also Emerson v. City of New York, 740 F. Supp. 2d 385, 395 (S.D.N.Y. 2010) ("[A] plaintiff is generally prohibited from suing a municipal agency.").
The Court therefore dismisses Plaintiff's claims against DOC.
When a plaintiff sues a municipality under § 1983, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) ("A municipality or other local government may be liable under this section [1983] if the governmental body itself 'subjects' a person to a deprivation of rights or 'causes' a person 'to be subjected' to such deprivation.") (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a § 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted).
The complaint does not contain allegations suggesting a municipal liability claim. Should Plaintiff wish to pursue claims against the City of New York, he may file an amended complaint, name the City as a Defendant, and provide facts showing that a municipal policy, custom, or practice gave rise to his claims.
B. Waiver of Service
The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Captain Kirkland (Shield No. 1778), Captain Morales, Captain or Correction Officer Phillips, and C.O. or Chief Jennings waive service of summons.
In the complaint, Plaintiff identifies Phillips as both a captain and a C.O., and he identifies Jennings as both a C.O. and a Chief.
C. Local Civil Rule 33.2
Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court's website under "Forms" and are titled "Plaintiff's Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents." Within 120 days of the date of this order, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.
If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit.
D. Motion for Counsel
Plaintiff has filed an application for the Court to request pro bono counsel. 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, the Court denies Plaintiff's application to request pro bono counsel without prejudice to renewal at a later date.
CONCLUSION
The Court directs the Clerk of Court to mail a copy of this order to Plaintiff, together with an information package.
The Court dismisses Plaintiff's claims against the New York City Department of Correction. See 28 U.S.C. §1915(e)(2)(B)(ii).
The Clerk of Court is further directed to electronically notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Defendants Kirkland, Morales, Phillips, and Jennings waive service of summons.
The motion for counsel is denied without prejudice, and the Clerk of Court is directed to terminate it. (ECF No. 4.)
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). SO ORDERED. Dated: June 25, 2020
New York, New York
/s/_________
ALISON J. NATHAN
United States District Judge