Summary
dismissing prisoner's civil rights complaint against George Motchan Detention Center on Rikers Island because it is not a suable entity
Summary of this case from Williams v. N.Y.C. Dep't of Corr.Opinion
01 Civ. 6931 (RWS)
December 6, 2002
RENWICK WILLIAMS, Plaintiff Pro Se, Cape Vincent Correctional Facility, Cape Vincent, NY.
HONORABLE MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Defendants, New York, NY., By: ZACHARY A. CUNHA, ESQ., Assistant Corporation Counsel Of Counsel.
OPINION
Defendants George Motchan Detention Center ("GMDC") and Captain Maximo Santiago ("Santiago") have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and partial dismissal pursuant to Fed.R.Civ.P. 4(m) on the grounds that (1) GMDC is not a suable entity and (2) service has not been effected on the individual designated as "Captain Gong" ("Gong") in the period prescribed by Rule 4(m). They seek to have the complaint of pro se plaintiff Lennox David a/k/a Renwick Williams ("David"), which alleges a violation of 42 U.S.C. § 1983, dismissed as to GMDC and Gong. David has cross-moved for a default judgment pursuant to Fed.R.Civ.P. 55.
Although the motion is ostensibly one by Santiago, he does not at this time contest that there is a viable claim for a single instance of alleged excessive force against him. Defs.' Mem. at 9.
For the following reasons, the defendants' motion is granted as to GMDC and denied as to Gong. Further, David's motion is denied.
Facts
The following facts are taken from David's amended complaint (the "Complaint") and do not constitute findings of fact by the Court. On September 14, 2000, David's section was called to go to the mess hall for lunch at approximately 12:15 p.m. It was the last section to get called, and there was a long line in the mess hall to get food. David, who has a heart condition and high blood pressure, remained at the back of the line because it was very hot and the weather made him feel unwell.
Santiago approached David and asked, "Why are you all the way back there?" David explained that he had high blood pressure and that he didn't feel well. Santiago told him to move up in line. David moved up in line a little. Santiago then said, "You're not too old to get beat down."
David responded by calling Santiago an "asshole," and Santiago replied with other invectives. David then told Santiago that Santiago could not speak to him like that because he was not a child and "would not pay him any mind." Santiago then told David to step out of the mess hall line and into the hallway. There, he made David put his hands against the wall and kicked his feet apart. He said, "You think you're a gangster." Then he proceeded to hit David in his ribs on his left side.
At that time, defendant Gong approached and hit David across the left side of his face and in the ear. Both Santiago and Gong then hit David in the ribs and back. The officers then called another officer to take David to the intake area, stating that he did not need to eat because he was a "gangster."
David stayed in the intake area until 2 p.m. That night David signed up for sick call, and visited the doctor the next morning. He told the doctor that the two defendants had beaten him up. The doctor asked for the injury report, and David replied that the defendants had not filled one out. The doctor then examined David and proscribed "moltrons" for a week. Prior Proceedings David commenced this suit against GMDC, Santiago, and "Captain Chong" on July 27, 2001, alleging a violation of 42 U.S.C. § 1983 and seeking $10 million in damages.
On June 6, 2002, David moved to amend his complaint to correct the date of the incident upon which his allegations are based and to substitute Gong for the "Captain Chong" previously named in the caption. By letter dated July 2, 2002, the Corporation Counsel's office indicated that it would not oppose the amendment, provided that David serve Gong at his present place of business. On August 7, 2002, David's motion was granted subject to the condition that he properly serve Gong at the address provided in the Court's order. Gong had not yet been served at the time the defendants filed this motion.
The defendants filed this motion on October 2, 2002, and it was considered fully submitted on October 23, 2002. Attempts to Serve Process on Gong By letter dated June 20, 2002, the Pro Se Office of the Southern District of New York informed David that service had not been executed as to "Captain Chong," and that time had expired in which to do so. The office further informed David that he may be able to get an extension of time by explaining the reason for his delay to the Court. The letter concluded that if David's request for an extension of time was granted, an amended summons would be sent to David along with the materials necessary for service.
By letter dated June 25, 2002, David moved for an extension of time in which to serve Captain Gong. The letter was memo endorsed on July 2, 2002.
David claims that because he had not yet received the materials promised by the Pro Se Office in order to serve Gong, he sent an old form to the U.S. Marshals Office. By letter dated September 10, 2002, the Marshals Office returned the form to David as they needed other documents. David received that letter on September 12, 2002, and forwarded the documents to the Marshals Office on September 13, 2002.
Discussion
I. Standard of Review
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "'to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware that pro se status "'does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
The standard of review for a motion for judgment on the pleadings pursuant to Rule 12(c) is the same as that for a Rule 12(b)(6) motion to dismiss. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 124 (2d Cir. 2001). In reviewing such a motion, courts must "accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993)). However, "legal conclusions, deductions, or opinions couched as factual allegations are not given a presumption of truthfulness." L'Eureopeenne de Banque v. La Republica de Venezuela, 700 F. Supp. 114, 122 (S.D.N.Y. 1988). The complaint may only be dismissed when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991); Berheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996).
Review must be limited to the complaint and documents attached or incorporated by reference thereto. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). In this context, the Second Circuit has held that a complaint is deemed to "include . . . documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).
II. The Complaint Is Dismissed as Against GMDC
Section 396 of the New York City Charter provides that "all 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 for by law." As a result, the New York Department of Corrections and its subdivisions, including GMDC, are not suable entities. Rivera v. State of New York, 1999 U.S. Dist. LEXIS 129, at *32 n. 6 (S.D.N.Y. Jan. 12, 1999) (dismissing claim against Department of Corrections); Torres v. New York City Dep't of Corrections, 1995 U.S. Dist. LEXIS 1698, at *2 (S.D.N.Y. Feb. 15, 1995) (same); Butler v. New York City Dep't of Corrections, 1993 U.S. Dist. LEXIS 4215, at *1 (S.D.N.Y. April 5, 1993) ("[A]ctions may not be asserted against an agency of the City of New York but must rather be brought against the City itself."). As a result, the claim against GMDC is dismissed.
David may be granted leave to amend his complaint to name the City of New York as a defendant if he can "in truth and good conscience" allege that the City is liable to him. Butler, 1993 U.S. Dist. LEXIS 4215, at *1 (citations omitted). The defendants argue that David will not be able to do so.
To state a claim under 42 U.S.C. § 1983, a complaint must aver that a person acting under color of state law committed acts that deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1984). In order to hold a municipality liable as a "person" within the meaning of 42 U.S.C. § 1983, the plaintiff must establish that the municipality was at fault for the constitutional injury he suffered. Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985); Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978), in that the violation of the plaintiff's constitutional rights resulted from a municipal custom, policy or practice. Monell, 436 U.S. at 694; Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995).
David may satisfy the "policy, custom or practice" requirement in one of four ways. Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996). He may allege the existence of (1) a formal policy officially endorsed by the municipality, Monell, 436 U.S. at 690; (2) actions taken by government officials responsible for establishing municipal policies related to the particular deprivation in question, Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion); Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992); (3) a practice so consistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials, Monell, 436 U.S. at 690-91; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to "deliberate indifference" to the rights of those who come into contact with the municipal employees. City of Canton v. Harris, 489 U.S. 378, 388 (1989). There must also be a causal link between the policy, custom or practice and the alleged injury in order to find liability against the city. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
The Vann Court described deliberate indifference as follows:
To prove such deliberate indifference, the plaintiff must show that the need for more or better supervision to protect against constitutional violations was obvious. . . . An obvious need may be demonstrated through proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents. . . . Deliberate indifference may also be shown through expert testimony that a practice condoned by the defendant municipality was "contrary to the practice of most . . . departments" and was "particularly dangerous" because it presented an unusually high risk that constitutional rights would be violated. Vann, 72 F.3d at 1049-50 (citations omitted).
If David believes in good faith that he can allege the existence of such a custom, policy or practice under which Santiago and Chong acted, then he may move to amend his complaint to include the City of New York as a defendant. In the absence of such amendment, it would be premature to rule on the defendants' motion to dismiss a claim against the City of New York.
III. Gong Is Not Dismissed
Pursuant to Fed.R.Civ.P. 4(m), a party who commences an action is required to accomplish service of the summons and complaint within 120 days of filing, on pain of dismissal.
Although the 120-day period expired on November 27, 2001, David was granted an extension of time in which to serve Gong on July 2, 2002. David was further reminded of this requirement to serve Gong in the August 7, 2002 order permitting him to amend his complaint to substitute Gong as a defendant.
David, who is incarcerated, does appear to be attempting to serve Gong but has run into a few hurdles outside his control. In light of his pro se incarcerated status and the fact that he appears to be making a good faith effort to serve Gong, his failure to serve Gong will not be counted against him at this time. David is now on notice, however, that if he has not served Gong within 60 days of the issuance of this opinion and cannot show good cause for not doing so, the complaint will be dismissed as against Gong.
IV. David's Motion for Default Judgment is Denied
In his opposition papers, David also cross-moved for relief. He complained that Santiago was not complying with Court orders and that Santiago presented affidavits in bad faith for the purpose of delaying this action in contravention of Fed.R.Civ.P. 56(g). David failed to present any evidence to support these allegations, and none appears in the record before the Court. As a result, these motions are denied.
While David labeled the cross-motion as one for default judgment, it appears based on the allegations that he was actually seeking sanctions pursuant to Fed.R.Civ.P. 56(g) and, perhaps, Fed.R.Civ.P. 37(b).
Conclusion
The defendants' motion is granted as to GMDC and denied as to Gong. If David fails to serve Gong within sixty (60) days of the issuance of this opinion and fails to show good cause for this failure, the complaint will be dismissed as against Gong, upon motion by the defendants. David may also move to amend the complaint to add the City of New York if he believes in good conscience that he can show municipal liability as described above. David's cross-motion is denied.
It is so ordered.