Opinion
1:22-cv-03815-MKV
07-12-2022
MICHAEL E. MEGGINSON, Plaintiff, v. ESH ADW MORALES, et al., Defendants.
VALENTIN ORDER
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff Michael Megginson, proceeding pro se, initiated this action by filing a Complaint on May 10, 2022. [ECF No. 2]. Plaintiff named defendants “ESH ADW Morales,” “ESH ADW Green,” “ESH Kanol Security Team Officer,” “ESH Secretary Hammon,” “ESH Hearing Officer Cummberbach,” “ESH Captains Ingram and Phillips,” “OMH Evan Beiterman -Director of OMH for Rikers,” “Chiefs Lemmon and Glover of OSIU,” and the City of New York as defendants. [ECF No. 1]. The Court thereafter filed an order requesting that all Defendants, except for “OMH Evan Beiterman,” waive service of summons. [ECF No. 6]. With respect to defendant Evan Beiterman, the Court was unable to determine, based on the description in the Complaint, whether he is an employee of the New York City Department of Correction (“DOC”) or the New York State Office of Mental Health (“NYSOMH”). [ECF No. 6]. The Court concluded that, in the Complaint, Plaintiff supplies sufficient information to identify Beiterman and ordered that the New York State Attorney General or the Corporation Counsel of the City of New York, who are the attorneys for and agents of NYSOMH and DOC, respectively, ascertain whether NYSOMH or DOC is Beiterman's employer and, if necessary, the address where Beiterman may be served. [ECF No. 6].
In the interim, three waivers of service were filed on July 11, 2022, two executed and one unexecuted. [ECF Nos. 8-10]. Specifically, the City of New York, DW Tiffany Morales, Capt. Tyneka Greene, Capt. Jermaine Phillips, Warden Charlton Lemon, and ADW Lilwania Glover agreed to waive service of summons and complaint. [ECF Nos. 8, 9]. However, DOC declined on behalf of CO Kanol, Secretary Hammon, Hearing Officer Cumberbatch, and Capt. Ingram to waive service of the summons and complaint. [ECF No. 10]. DOC represents that no employees in the agency match the name and title of “CO Kanol,” “CO Kannol,” or “Secretary Hammon.” [ECF No. 10]. DOC also represents that it cannot identify defendant Cummberbatch with the information provided in the Complaint. [ECF No. 10]. Finally, DOC represents that more than one employee in the agency matches the name and title of “Capt. Ingram” and that none are assigned to GRVC. [ECF No. 10].
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 these defendants. 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 of the individual(s) whom Plaintiff seeks to sue here and the address where the defendant(s) may be served. The New York City Law Department must provide this information to Plaintiff and the Court within thirty days of the date of this order.
If the 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 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 proper 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.
The Clerk of Court is respectfully requested to mail a copy of this Order to the pro se Plaintiff at the address of record, together with an information package.
SO ORDERED.