Summary
substituting City of New York for New York City Department of Correction pursuant to Rule 21
Summary of this case from Obah v. Dep't of Admin. For Children Servs.Opinion
21-CV-6718 (LJL)
08-17-2021
ROBERT LEE MURRAY, Plaintiff, v. N.Y.C. D.O.C.; 7 JOHN DOW; C.O. 1; JANE DOW CAPTAIN, Defendants.
ORDER OF SERVICE
LEWIS LIMAN, United States District Judge:
Plaintiff, currently incarcerated at the Bellevue Prison Ward, brings this pro se action under 42 U.S.C. § 1983, regarding events occurring on November 16, 2020, in a “pen” in the intake unit of C-95 on Rikers Island. Plaintiff alleges that seven correction officers forced him to strip in front of a female correction officer and pepper sprayed him. Plaintiff further alleges that one of the male correction officers put his penis in Plaintiff's “but[t], ” and then told him to “say nothing.” By order dated August 10, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP).
It is the Court's understanding that C-95 is located in the Anna M. Kross Center.
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).
DISCUSSION
A. New York City Department of Correction (DOC)
Plaintiff's claims against DOC must be dismissed because, as an agency of the City of New York, DOC is not an entity that can be sued in its own name. 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); see also Emerson v. City of New York, 740 F.Supp.2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”). Accordingly, Plaintiff's claims against DOC are dismissed.
B. New York City
In light of Plaintiff's pro se status and his clear intention to assert claims against the City of New York, the Clerk of Court is directed, under Rule 21 of the Federal Rules of Civil Procedure, to substitute the City of New York as a defendant in place of DOC. This substitution is without prejudice to any defenses that the City of New York may wish to assert.
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 the City of New York waive service of summons.
C. Doe defendants
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 complaint, Plaintiff may supply sufficient information to permit the New York City Department of Correction to identify the C-71 captain and correction officers Plaintiff names in this complaint. It is therefore ordered that the New York City Law Department, which is the attorney for and agent of the New York City Department of Correction, must ascertain the identity and badge number of each Doe whom Plaintiff seeks to sue here and the address where the defendant may be served. The New York City Law Department must provide this information to Plaintiff and the Court within sixty days of the date of this order.
If the Doe defendant is a current or former DOC employee or official, the New York City Law Department should note in the response to this order that an electronic request for a waiver of service can be made under the e-service agreement for cases involving DOC defendants, rather than by personal service at a DOC facility. If the Doe defendant is not a current or former DOC employee or official, but otherwise works or worked at a DOC facility the New York City Law Department must provide a residential address where the individual may be served.
Absent a showing of good cause, Plaintiff shall have thirty days after he receives this information to file an amended complaint naming the John Doe defendants. The amended complaint will replace, not supplement, the original complaint. An amended complaint form that Plaintiff may use is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order asking Defendants to waive service.
D. Local 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, 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.
CONCLUSION
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 directed to substitute the City of New York, under Fed.R.Civ.P. 21, as a defendant in place of DOC.
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 the City of New York waive service of summons.
The Clerk of Court is also directed to mail a copy of this order and the complaint to the New York City Law Department at: 100 Church Street, New York, N.Y. 10007. An Amended Civil Rights Complaint form is attached to this order.
The Clerk of Court is further directed to mail a copy of this order to Plaintiff, together with an information package.
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 in forma pauperis 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.