Opinion
22-CV-4631 (CS)
06-15-2022
ANTWAN M. GREEN, Plaintiff, v. CORRECTIONAL EMERGENCY RESPONSE TEAM; EDWARD BURNETT; ANTHONY J. ANNUCCI; NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Defendants,
ORDER OF SERVICE
CATHY SEIBEL, United States District Judge.
Plaintiff, who proceeds prose, was incarcerated at Fishkill Correctional Facility in the custody of the New York State Department of Corrections and Community Supervision (DOCCS) when she filed this action but has since been released. She brings this action under 42 U.S.C. § 1983, asserting claims arising from a group strip search on December 29, 2021, By order dated June 6, 2022, the Court granted Plaintiff's request to proceed in forma pauper is that is, without prepayment of fees.
Plaintiff alleges that she has been diagnosed with gender dysphoria and identifies as a woman. The Court therefore uses female pronouns. Plaintiff was housed in a facility for male prisoners.
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. §1915 A(a). The Court must dismiss a prisoner's in forma pauperis 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 E 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. New York State 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." New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states' immunity in enacting Section 1983, See Trotman v. Palisades Interstate Park Comm'n, 557 E2d 35, 40 (2d Cir. 1977). Plaintiff's Section 1983 claims against the New York State DOCCS and its agents in their official capacities (DOCCS Commissioner Anthony Annucci and Fishkill Superintendent Edward Burnett) are therefore barred by the Eleventh Amendment and are dismissed.
Plaintiff has been released from incarceration and seeks only damages. The complaint thus is not construed as asserting claims for injunctive relief under Ex Parte Young, 209 U.S. 123 (1908), against the DOCCS Commissioner and Superintendent in their official capacities.
B. DOCCS Commissioner Annucci and Fishkill Superintendent Burnett
To state a claim under Section 1983, a plaintiff must allege facts showing the defendants' direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F, 3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (internal quotation marks omitted). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff's rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.'"')- Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official.. . .” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).
Plaintiff does not allege any facts showing how DOCCS Commissioner Annucci and Fishkill Superintendent Burnett were personally involved in the events underlying Plaintiff's claims, Plaintiff's claims against Defendants Amiucci and Burnett in their individual capacities are therefore dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C, § 1915(e)(2)(B)(ii).
Plaintiff does allege that in January 2022, Superintendent Burnett told Plaintiff that he was aware of “what had occurred with CERT.” (ECF 2 at 15-16.) At that point, the events giving rise to Plaintiff's claims had already ended, and she had filed a grievance. Such allegations do not show that Defendant Burnett was personally involved in violating Plaintiff's rights.
C. Correctional Emergency Response Team
Plaintiff names the “Correctional Emergency Response Team” as a defendant in this action. Such teams are groups of specially trained correction officers. A Correctional Emergency Response Team of officers is not itself a legal entity with the capacity to be sued. Plaintiff's claims against “the Correctional Emergency Response Team” are therefore dismissed without prejudice because this defendant lacks the capacity to be sued.
In the complaint, however, Plaintiff identifies two correction officers on the team (described further below) who allegedly caused the violations of her rights. The Court therefore directs the Clerk of Court, under Rule 21 of the Federal Rules of Civil Procedure, to add the following defendants to the caption on the docket: John Doe, CERT member; and Jane Doe, CERT member.
D. John and Jane Doe CERT members
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 DOCCS to identify the following defendants who were members of the CERT assigned to search housing unit 16-2 on December 29, 2021, at Fishkill Correctional Facility: (1) John Doe, CERT member, a 260-pound African-American man; and (2) Jane Doe, CERT member, an African-American woman. It is therefore ordered that the New York State Attorney General, which is the attorney for and agent of the DOCCS, must ascertain the identity and badge number of each Doe defendant whom Plaintiff seeks to sue here and the address where the defendant may be served. The New York State Attorney General must provide this information to Plaintiff and the Court within sixty days of the date of this order.
Within thirty days after 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 Defendants and deliver to the U.S. Marshals Service all documents necessary to effect service.
CONCLUSION
The Court dismisses, due to Eleventh Amendment immunity, Plaintiffs Section 1983 claims against DOCCS, and her Section 1983 official-capacity claims against DOCCS Commissioner Annucci and Fishkill Superintendent Burnett. See 28 U.S.C. § 1915(e)(2)(B)(iii). The Court dismisses Plaintiff's individual-capacity claims under Section 1983 against DOCCS Commissioner Annucci and Fishkill Superintendent Burnett for their lack of personal involvement. 28 U.S.C. § 1915(e)(2)(B)(ii). The Court dismisses Plaintiff's claims against the Correctional Emergency Response Team because it lacks the capacity to be sued. The Clerk of Court is directed, under Fed.R.Civ.P. 21, to add as Defendants (1) John Doe, CERT member, and (2) Jane Doe, CERT member.
The Clerk of Court is directed to mail a copy of this order and the complaint to the New York State Attorney General at: 28 Liberty Street, 15th Floor, New York, New York 10005. The Clerk of Court is further directed to mail an information package to Plaintiff.
An “Amended Complaint” form is attached to this order.
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.