Opinion
20-CV-9502 (CM)
01-07-2021
MICHAEL NIEVES, Plaintiff, v. THE NEW YORK STATE OFFICE OF MENTAL HEALTH; ANN MAIET, COMMISSIONER; SULLIVAN, MD; NEW YORK CITY HEALTH AND HOSPITALS CORP.; LEONARDO V. LOPEZ, MD; SWATI SHIVALE, MD; TARAH SCANLON; CATHERINE MIER; ASHLEY L. VALENCIA, MD; ROBERT NADRICH, MD; DENNIS POPEO, MD; STATE OF NEW YORK; UNITED STATES FEDERAL GOVERNMENT, Defendants.
ORDER
COLLEEN McMAHON, Chief United States District Judge
Plaintiff is currently confined in Bellevue Hospital's prison ward. He brings this suit under 42 U.S.C. § 1983 against eight Bellevue Hospital doctors (Defendants Sullivan, Lopez, Shivale, Scanlon, Mier, Valencia, Nadrich, and Popeo), the New York City Health and Hospitals Corporation, the State of New York, the United States, and the New York State Office of Mental Health and its Commissioner, Ann Mariet.
After Plaintiff filed the complaint, he submitted multiple letters seeking either to dismiss certain defendants or change the relief he is seeking. Plaintiff's first letter asks the Court “to allow an Amended Complaint in the matter of the removal of the mistaken defendant, Dennis Popeo, M.D.” (ECF No. 7.) His next letter indicates that he “wishes to have Dr. Popeo Denise [sic] exempted from [his] lawsuit against the New York State Office of Mental Health, et al.” (ECF No. 8.) Finally, Plaintiff's letter dated January 5, 2021, states that he “would like the Court to remove defendants Tarah Scanlon, MD: Catherine Mier, and Ann Marie T. Sullivan, MD from my complaint for damages, specifically.” (ECF No. 9.) The same letter indicates that Plaintiff “would also like to withdraw [his] suit for the specified amount of damages from each of the other defendants listed in the Complaint ....” It is not entirely clear from Plaintiff's January 5, 2021 letter if he wishes to dismiss certain defendants or simply alter the amount of his damages request.
Under Rule 15 of the Federal Rules of Civil Procedure, a plaintiff has the right to amend his or her complaint once without permission from the Court at any time before a responsive pleading is served (or within 21 days after service of the complaint). See Fed.R.Civ.P. 15(a). Plaintiff's complaint has not yet been served on Defendants, and he therefore does not need permission of the Court at this time to amend his complaint.
Because it appears from Plaintiff's letters that he wishes to amend his complaint, the Court will allow 30 days before screening the complaint to permit Plaintiff an opportunity to file an amended complaint clarifying who he wishes to name as a defendant in this action and the claim(s) that he brings against such defendants. An amended complaint completely replaces, rather than supplements, an original complaint, and thus only the parties and claims that are included in an amended complaint can be considered. For Plaintiff's convenience, an amended complaint form is attached to this order. If Plaintiff does not amend his complaint within 30 days, the Court will screen the original complaint, under 28 U.S.C. § 1915(e)(2)(B), against the defendants named therein.
The Court also cautions Plaintiff that some of the defendants named in the original complaint appear to be immune from suit and, if so, should not be included in an amended complaint. See, e.g., United States v. Mitchell, 463 U.S. 206, 212 (1983) (United States cannot be sued without its consent); Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (“[S]tate 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 ....”).
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Because Plaintiff indicates that he wishes to amend his complaint, the Court will allow 30 days before screening the complaint to permit Plaintiff an opportunity to file an amended complaint. For Plaintiff's convenience, an amended complaint form is attached to this order. If Plaintiff does not amend his complaint within 30 days, the Court will screen the original complaint under 28 U.S.C. § 1915(e)(2)(B).
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.