Opinion
22-CV-3793 (VB)
07-18-2022
TOBIA SACCHETTI, Plaintiff, v. DOBBS FERRY POLICE DEPARTMENT; AGENT A JOHN #1 POLICE OFFICER, Defendants.
ORDER OF SERVICE
VINCENT L. BRICCETTI, UNITED STATES DISTRICT JUDGE
Plaintiff, currently incarcerated at the Westchester County Jail, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants subjected him to excessive force. By order dated July 18, 2022, the Court 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).
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 IFP 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. Dobbs Ferry Police Department
Plaintiff's claims against the Dobbs Ferry Police Department must be dismissed. The Dobbs Ferry Police Department is an administrative arm of the Village of Dobbs Ferry. As such, it does “not have a legal identity separate and apart from the municipality, and cannot sue or be sued.” Carroll v. City of Mount Vernon, 707 F.Supp.2d 449, 450 n.2 (S.D.N.Y. 2010); Warner v. Village of Goshen Police Dep't, 256 F.Supp.2d 171, 175-76 (S.D.N.Y. 2003). Plaintiff's claims against the Dobbs Ferry Police Department must therefore be dismissed.
In light of Plaintiff's pro se status and clear intention to assert claims against the Village of Dobbs Ferry, the Court construes the complaint as asserting claims against the Village of Dobbs Ferry, and directs the Clerk of Court to amend the caption of this action to replace the Dobbs Ferry Police Department with the Village of Dobbs Ferry. See Fed.R.Civ.P. 21. This amendment is without prejudice to any defenses the Village of Dobbs Ferry may wish to assert. B. Service on the Village of Dobbs Ferry
Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. See Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013) (citing 28 U.S.C. § 1915(d)); § 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. Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012); but see Murray v. Pataki, 378 Fed.Appx. 50, 51-52 (2d Cir. 2010) (summary order) (“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 the Village of Dobbs Ferry 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 this Defendant. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service upon this Defendant.
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. John Doe Defendant
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 Dobbs Ferry Police Department to identify the police officer who allegedly used excessive force against Plaintiff at approximately 5:00 a.m. on February 25, 2022, near the post office in the Ardsley Shopping Center. It is therefore ordered that the Village of Dobbs Ferry, which is the municipal entity responsible for the Dobbs Ferry Police Department, shall ascertain the identities of the John Doe Defendant whom Plaintiff seeks to sue here and the address where this Defendant may be served. The Village of Dobbs Ferry shall provide this information to Plaintiff and the Court within sixty days of the date of this order.
Within thirty days of receiving this information, Plaintiff must file an amended complaint naming the John Doe Defendant. 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 form with the address for the named John Doe Defendant and deliver to the U.S. Marshals Service all documents necessary to effect service.
CONCLUSION
The Court dismisses Plaintiff's claims against the Dobbs Ferry Police Department. See 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is directed to add the Village of Dobbs Ferry as a Defendant under Fed.R.Civ.P. 21.
The Clerk of Court is further instructed to; (1) issue a summons and complete the USM-285 form with the address for the Village of Dobbs Ferry and deliver to the U.S. Marshals Service all documents necessary to effect service; (2) mail a copy of this order and the complaint to the attorney for the Village of Dobbs Ferry at: 112 Main Street, Dobbs Ferry, New York 10522; and (3) mail an information package to Plaintiff.
An amended complaint form is attached to this order.
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).
The Clerk shall mail a copy of this Order of Service, and its attachment, to Plaintiff.
SO ORDERED.