Opinion
19-CV-10212 (JPO)
11-14-2019
KAWAHN STRACHN, Plaintiff, v. NYPD; NYPD OFFICER GOMEZ; LIEUTENANT EDMONDS; FRIAS RAILYNG, Defendants.
DEFENDANTS AND SERVICE ADDRESSES City of New York New York City Law Department 100 Church Street New York, NY 10007 Officer Gomez NYPD Transit Bureau District 11 161 Street Station & River Avenue Bronx, NY 10451 Frias Railyng, Shield No. 30952 NYPD Transit Bureau District 11 161 Street Station & River Avenue Bronx, NY 10451 Lieutenant Edmonds NYPD Transit Bureau District 11 161 Street Station & River Avenue Bronx, NY 10451
ORDER OF SERVICE :
Plaintiff, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. By order dated November 4, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on 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); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when 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).
DISCUSSION
A. New York City Police Department
As an agency of the City of New York, the New York City Police Department (NYPD) is not an entity that can 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."). Plaintiff's claims against the NYPD must be dismissed because it cannot be sued in its own name.
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 NYPD 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 Named Defendants
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. 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 the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is 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 F. App'x 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 City of New York, Gomez, Edmonds, and Railyng 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 a summons 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.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package.
The Court dismisses Plaintiff's claims against the New York Police Department because it cannot be sued in the name of the agency. The Clerk of Court is directed to add the City of New York as a Defendant under Fed. R. Civ. P. 21.
The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Defendants City of New York, Officer Gomez, Officer Frias Railyng, and Lieutenant Edmonds, and deliver to the U.S. Marshals Service all documents necessary to effect service.
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. Dated: November 14, 2019
New York, New York
/s/_________
J. PAUL OETKEN
United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
City of New York
New York City Law Department
100 Church Street
New York, NY 10007 Officer Gomez
NYPD Transit Bureau District 11
161 Street Station & River Avenue
Bronx, NY 10451 Frias Railyng, Shield No. 30952
NYPD Transit Bureau District 11
161 Street Station & River Avenue
Bronx, NY 10451 Lieutenant Edmonds
NYPD Transit Bureau District 11
161 Street Station & River Avenue
Bronx, NY 10451