Opinion
22-CV-5956 (JGK)
07-28-2022
JAMEL PURNELL, Plaintiff, v. CAPT. WILLIAMS; NYC DOC; OFFICER JOHN DOE 1; OFFICER JOHN DOE 2; OFFICER JOHN DOE 3; OFFICER JOHN DOE 4; OFFICER JOHN DOE 5; OFFICER JOHN DOE 6, Defendants.
ORDER OF SERVICE
JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE
Plaintiff, who is currently detained at the Robert N. Davoren Complex, brings this pro se action under 42 U.S.C. § 1983. He alleges that on July 4, 2021, when he was detained at the Anna M. Kross Center (AMKC), Defendants used excessive force against him.
By order dated July 25, 2022, the Court granted Plaintiff's request to proceed in forma pauperis, 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 in forma pauperis. See 28 U.S.C. § 1915(b)(1).
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. New York City Department of Correction
Plaintiff's claims against the New York City Department of Correction (DOC) must be dismissed because, as an agency of the City of New York, the DOC cannot be sued in the name of the agency. 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.”). Instead, Plaintiff's claims against the DOC must be brought against the 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.
B. Service on the City of New York
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 the City of New York and Captain Williams waive service of summons.
C. Identifying 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 the John Doe officers involved in extracting Plaintiff from his cell at AMKC on July 4, 2021. 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 New York City 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 New York City 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 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 New York City Law Department must provide a residential address where the individual may be served.
Plaintiff has not provided a badge number for Captain Williams, and the DOC may be unable to identify and waive service for Captain Williams. If so, the Court directs the New York City Law Department, under Valentin v. Dinkins, to identify a badge number for Captain Williams and provide this to Plaintiff and the Court, together with the information for the John Doe defendants.
Within thirty days of receiving this information, Plaintiff must file an amended complaint naming the John Doe defendants. The amended complaint will replace, not supplement, the original complaint. An amended complaint form for Plaintiff to complete after receiving this information 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 the newly identified Defendants to waive service.
D. Automatic Discovery
Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court's website under “Forms” and are titled Plaintiff s Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents.” Within 120 days of the date of this order, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.
If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit.
CONCLUSION
The Court dismisses Plaintiff's claims against the New York City Department of Correction because it lacks the capacity to be sued. The Clerk of Court is directed, under Rule 21 of the Federal Rules of Civil Procedure, to add the City of New York as a Defendant.
Local Civil Rule 33.2 applies to this action. An Amended Civil Rights Complaint form is attached to this order.
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 Captain Williams and the City of New York waive service of summons.
The Clerk of Court is further directed to: (1) mail a copy of this order and the complaint to the New York City Law Department at 100 Church Street New York, NY 10007; and (2) mail an information package to Plaintiff.
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.