Opinion
22-CV-7858 (JPC)
10-04-2022
SEDGRICK JACOB, III, Plaintiff, v. DEPT. OF CORRECTIONS; JOHN DOE 1; JOHN DOE 2; CAPTAIN JOHN DOE, Defendants.
ORDER OF SERVICE
JOHN P. CRONAN, UNITED STATES DISTRICT JUDGE
Plaintiff, who is currently in pretrial detention at the Vernon C. Bain Center in Bronx, New York, brings this pro se action under 42 U.S.C. § 1983, alleging that correction officers, who are named as John Doe defendants, allegedly failed to protect him from an assault by other detainees. By order dated September 14, 2022, the Chief Judge Laura Taylor Swain granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.
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).
As set forth below, the Court (1) dismisses all claims brought against the New York City Department of Correction (“DOC”) because it is as a nonsuable entity; (2) adds the City of New York as a defendant, under Fed.R.Civ.P. 21; (3) asks the City of New York to waive service of summons; and (4) directs the New York City Law Department to identify the three John Doe Defendants.
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. § 1915A(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 F.3d 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. Department of Correction
Plaintiff's claims against the DOC must be dismissed because an agency of the City of New York is not an entity that can be sued. 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.”).
B. City of New York
In light of Plaintiff's pro se status and clear intention to assert claims against the City of New York, the Court construes the complaint as asserting claims against the City of New York, and directs the Clerk of Court to amend the caption of this action to replace the DOC with the City of New York. See Fed.R.Civ.P. 21. This amendment is without prejudice to any defenses the City of New York may wish to assert.
C. Waiver of Service
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.
D. John 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 DOC to identify John Doe #1, John Doe #2, and Captain John Doe. It is therefore ordered that the New York City Law Department, which is the attorney for and agent of the DOC, must ascertain the identity and badge number of each John Doe whom Plaintiff seeks to sue here and the address where the 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.
If the Doe defendant is a current or former DOC employee or official, the 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 Law Department must provide a residential address where the individual may be served.
Within thirty days of receiving this information, Plaintiff must file an amended complaint naming the John Doe defendant(s). 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 asking Defendants to waive service.
CONCLUSION
The Clerk of Court is directed to send a mailing package to Plaintiff.
The Court dismisses Plaintiff's claims against the New York City Department of Correction because it may not be sued under the New York City Charter. The Clerk of Court is directed to add the City of New York as a Defendant under Fed.R.Civ.P. 21.
The Clerk of Court is 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 Defendant 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, NY 10007.
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).
SO ORDERED.