Opinion
21-CV-8002 (NSR)
03-15-2022
EVERETT REED, Plaintiff, v. SUPERINTENDENT MARK ROYCE; DEPT OF SECURITY ANTHONY RUSSO; OFFICER L. MASSETT, Defendants.
ORDER OF SERVICE
NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE
Plaintiff, who is currently incarcerated at Green Haven Correction Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants failed to protect him from a violent prisoner. By order dated January 6, 2022, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP).
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).
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).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
DISCUSSION
A. Officer L. Massett
To state a claim under 42 U.S.C. § 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 § 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 Officer Massett was personally involved in the events underlying his claims. Plaintiff's claims against Officer Massett are therefore dismissed for failure to state a claim on which relief may be granted. The Court grants Plaintiff leave to file an amended complaint to provide facts describing Officer Massett's personal involvement in what occurred.
B. Order of Service
Because Plaintiff has been granted permission to proceed IFP, Plaintiff is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that summonses and the complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the complaint until the Court reviewed the complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. If the complaint is not served within that time, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service); see also Murray v. Pataki, 378 Fed.Appx. 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals' failure to effect service automatically constitutes ‘good cause' for an extension of time within the meaning of Rule 4(m).”).
To allow Plaintiff to effect service on Defendants Superintendent Mark Royce and Deputy Superintendent of Security Anthony Russo through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for each of these defendants. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these defendants.
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.
C. Doe Defendants
In the complaint, Plaintiff alleges that an “A-Officer” and a “B-Officer” were on duty when another prisoner, Tharpe, assaulted Plaintiff on December 16, 2021, at the time of the “PSU medication run.” The A-Officer opened Tharpe's cell (#181), and the B-Officer was stationed at the “kiosk located at the front of ‘4 Company, '” where Plaintiff sat in his wheelchair. (ECF 12 at 4.) Plaintiff does not name these officers in the caption of the complaint.
In light of Plaintiff's pro se status and clear intention to assert claims against the A-Officer and the B-Officer, the Court directs the Clerk of Court, under Rule 21 of the Federal Rules of Civil Procedure, to amend the caption of this action to add “John or Jane Doe 1” and “John or Jane Doe 2.” This amendment is without prejudice to any defenses these individuals may wish to assert once they are identified.
Under Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997), a pro se litigant is entitled to assistance from the district court in identifying defendants. In the complaint, Plaintiff supplies sufficient information to permit the New York State Attorney General's Office to identify the A-Officer and the B-Officer. It is therefore ordered that the New York State Attorney General's Office, which is the attorney for and agent of the New York State Department of Corrections and Community Supervision, must ascertain the identities and badge numbers of the John or Jane Doe whom Plaintiff seeks to sue here and the address where the defendant may be served. The New York State Attorney General's Office must provide this information to Plaintiff and the Court within sixty days of the date of this Order, by May 16, 2022.
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 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 John Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service.
CONCLUSION
Plaintiff's claims against Officer L. Massett are dismissed without prejudice. The Court grants Plaintiff leave to file an amended complaint to provide facts against this defendant within thirty days, by April 14, 2022. Failure to timely file an amended complaint may result in the dismissal of claims with prejudice against Officer L. Massett.
The Clerk of Court is directed to: (1) mail a copy of this Order to Plaintiff, together with an information package; (2) add “John or Jane Doe 1” and “John or Jane Doe 2” as defendants in this action, see Fed.R.Civ.P. 21; (3) mail a copy of this order and the complaint to the New York State Attorney General at: 28 Liberty Street, New York, NY 10005; and (4) complete the USM-285 forms with the addresses for Superintendent Mark Royce and Deputy Superintendent of Security Anthony Russo and deliver all documents necessary to effect service to the U.S. Marshals Service.
An amended complaint form is attached to this order.
SO ORDERED.