Opinion
21-CV-10538 (KMK)
02-24-2022
WILFRED LABOSSIERE, Plaintiff, v. DOWNSTATE CORRECTIONAL FACILITY, JOHN DOE OFFICER BLOCK OFFICER OF BLOCK 3 TO 11 SHIFT ON JULY 13, 2019, and N. BAXTER, Defendants.
ORDER OF SERVICE
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE:
Plaintiff, who is currently incarcerated in Sing Sing Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights when he was incarcerated in Downstate Correctional Facility. By order dated February 18, 2022, Chief Judge Swain granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). (See Dkt. No. 9.)
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 also must 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 a pro se complaint liberally, ” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (italics omitted), and interpret it to raise the “strongest [claims] that [it] suggest[s], ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (quotation marks omitted) (emphasis in original).
II. Discussion
A. Claims Against Downstate Correctional Facility
Plaintiff brings claims against Downstate, a facility operated by the New York State Department of Corrections and Community Supervision (“DOCCS”). “[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. New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states' immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977). The Court therefore dismisses Plaintiff's § 1983 claims against Downstate as barred by the Eleventh Amendment. See 28 U.S.C. § 1915(e)(2)(B)(iii); see also Johnson v. Dep't of Corr., No. 21-CV-986, 2021 WL 1030621, at *1 (S.D.N.Y. Mar. 17, 2021) (“DOCCS is an arm of the state entitled to Eleventh Amendment immunity, and therefore [the] plaintiff's § 1983 claims against DOCCS and Downstate are barred by the Eleventh Amendment and are dismissed.”).
B. Claims Against the John Doe Defendant
Plaintiff brings also brings claims against a John Doe defendant, who Plaintiff identifies as a “Block Officer” for the “F” Block during the 3pm to 11pm shift on July 13, 2019. (See Compl. 1 (Dkt. No. 2).) 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 his Complaint, Plaintiff does supply sufficient information to permit DOCCS to identify the John Doe defendant, however, Plaintiff does not include any specific allegations as to the John Doe defendant or even mention the John Doe defendant outside of the case caption. (See generally Compl.)
“It is well settled that, in order to establish an individual's personal liability in a suit brought under [42 U.S.C.] § 1983, a plaintiff must show . . . the defendant's personal liability in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). To establish “personal involvement, ” a plaintiff must plausibly allege that the defendant's actions fall into one of the following five categories:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Id. at 139 (quotation marks and emphases omitted). It is for this reason that “[f]ailing to name a defendant outside the caption of the complaint is grounds for dismissal.” Price v. Koenigsmann, No. 19-CV-4068, 2020 WL 4274079, at *4 (S.D.N.Y. July 24, 2020) (collecting cases).
Accordingly, Plaintiff is instructed to file an amended complaint by no later than 30 days from the date of this Order that includes specific allegations as to the John Doe defendant, or Plaintiff's claims against the John Doe defendant will be dismissed. Upon the submission of the amended complaint, the Court will issue a Valentin order requiring the New York State Attorney General, who is the attorney for and agent of DOCCS, to ascertain the identity of the John Doe defendant and the address where the John Doe defendant may be served.
C. Service on Officer Baxter
Because Plaintiff has been granted permission to proceed IFP, Plaintiff is entitled to rely on the Court and the U.S. Marshals Service to effect service. See 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 the summons and the complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and the complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. If the complaint is not served within that time, 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); see also Murray v. Pataki, 378 Fed.Appx. 50, 52 (2d Cir. 2010) (summary order) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals' failure to effect service automatically constitutes ‘good cause' for an extension of time within the meaning of Rule 4(m).”).
To allow Plaintiff to effect service on Defendant Officer Baxter 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 this defendant. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon this defendant.
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. 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 service of the complaint, Defendant Officer Baxter must serve responses to these standard discovery requests. In his responses, Defendant Officer Baxter 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.
III. Conclusion
The Court dismisses Plaintiff's claims against Downstate Correctional Facility. See 28 U.S.C. § 1915(e)(2)(B)(iii). 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).
Local Civil Rule 33.2 applies to this action.
The Clerk of Court is instructed to issue a summons, complete the USM-285 forms with the address for Officer N. Baxter, and deliver to the U.S. Marshals Service all documents necessary to effect service on this defendant.
The Clerk of Court is directed to mail a copy of this Order to Plaintiff, together with an information package. An amended complaint form is attached to this Order.
SO ORDERED.