Opinion
24-CV-1880 (JHR)
05-13-2024
AMAURY URENA, Plaintiff, v. THE CITY OF NEW YORK et al., Defendants.
ORDER OF SERVICE
JENNIFER H. REARDEN, UNITED STATES DISTRICT JUDGE:
Plaintiff, who is proceeding pro se, brings this action under 42 U.S.C. § 1983 against Defendants the City of New York, the 48th Precinct (the “48th Precinct”) of the New York City Police Department (“NYPD”), Officer Aponte, and three John Doe defendants (the “Doe Defendants”). By Order dated April 8, 2024, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.
For the reasons stated below, the Court (i) dismisses the 48th Precinct as a Defendant because it is an entity that cannot be sued; (ii) directs service on Defendants City of New York and Officer Aponte; and (iii) directs the New York City Law Department to identify the Doe Defendants so that they may be served.
ORDER
DISCUSSION
A. The 48th Precinct
Plaintiff's claims against the 48th Precinct must be dismissed because a precinct is not an entity that has the capacity to be sued. See, e.g., Orraca v. City of New York, 897 F.Supp. 148, 152 (S.D.N.Y. 1995) (“[T]he 25th Precinct is a subdivision of the Police Department without the capacity to be sued.”). To the extent the Court were to construe the claims against the 48thPrecinct as brought against the New York City Police Department (“NYPD”), such claims also must be dismissed because the NYPD cannot be sued, pursuant to the New York City Charter.
See 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.”). “The Court therefore dismisses the claim against the [48]th Precinct because it is a nonsuable entity and construes the claim involving the police as one brought against the City of New York.” Acevedo v. City of New York, No. 24 Civ. 0558 (LTS), 2024 WL 1641346, at *2 (S.D.N.Y. Apr. 15, 2024).
B. Service on Defendants City of New York and Officer Aponte
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 a summons 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 after the Court reviewed the Complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued.
To allow Plaintiff to effect service on Defendants City of New York and Officer Aponte through the U.S. Marshals Service, the Clerk of Court is instructed to complete 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 a summons and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service upon these Defendants.
If the Complaint is not served within 90 days of the date the summons is issued, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that the plaintiff bears responsibility to request such an extension).
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.
C. Order to Identify the 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 supplies sufficient information to permit the NYPD to identify the three Doe Defendants identified in the Complaint. It is therefore ordered that the New York City Law Department, which is the attorney for and agent of the NYPD, shall ascertain the identity and badge number of each John Doe whom Plaintiff seeks to sue here and the address where each Doe Defendant may be served. The Law Department 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 an amended complaint naming the Doe Defendants. The amended complaint will replace, not supplement, the original Complaint. An amended complaint form that Plaintiff should complete 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 directing the Clerk of Court to complete the USM-285 forms with the addresses for the named John Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service.
CONCLUSION
The Court dismisses Plaintiff's claims against the 48th Precinct because the 48th Precinct does not have the capacity to be sued.
The Clerk of Court is directed to issue a summons for Defendants City of New York and Officer Aponte, complete the USM-285 forms with the address(es) for these Defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further directed to mail a copy of this Order and the Complaint to the New York City Law Department at 100 Church Street, New York, NY 10007.
Finally, the Clerk of Court is further directed to mail an information package to Plaintiff.
SO ORDERED.
DEFENDANT AND SERVICE ADDRESS
Montefiore Medical Center
853 Longwood Avenue
Bronx, NY 10469