Opinion
1:22-CV-1429 (JPO)
03-10-2022
ABDOULAYE TRAORE, Plaintiff, v. NEW YORK DEPARTMENT OF CORRECTIONS; RIKERS ISLAND STAFF, Defendants.
ORDER OF SERVICE
J. PAUL OETKEN, United States District Judge
Plaintiff Abdoulaye Traore, who appears pro se, brings this action for damages alleging that the defendants violated his federal constitutional rights. Plaintiff sues the New York City Department of Correction (“NYCDOC”) and unidentified “Rikers Island Staff.” The Court construes Plaintiff's complaint as asserting claims under 42 U.S.C. § 1983 and state law.
By order dated February 25, 2022, the court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). For the reason discussed below, the Court dismisses Plaintiff's claims against the NYCDOC, and directs the Clerk of Court to add the City of New York as a defendant. The Court requests that the City of New York waive service of summons, and directs the City of New York to comply with Local Civil Rule 33.2. The Court also directs the Corporation Counsel of the City of New York and the Attorney General of the State of New York to inform Plaintiff and the Court of the identities of: (1) those members of the NYCDOC personnel who were responsible for the Plaintiff's conditions of confinement, as to the prevention of the spread of COVID-19, while Plaintiff was in NYCDOC custody, and (2) any NYCDOC employee or New York State Court Officer who sprayed Plaintiff with mace.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, 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. See 28 U.S.C. § 1915(e)(2)(B);
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. The NYCDOC
The Court must dismiss Plaintiff's claims against the NYCDOC because an agency of the City of New York, such as the NYCDOC, is not an entity that can be sued. 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, 395 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”).
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 NYCDOC 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. The City of New York
The Court directs the Clerk of Court to electronically notify the NYCDOC and the New York City Law Department of this order. The Court requests that the City of New York waive service of summons.
C. Local Civil Rule 33.2
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. These 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, the City of New York must serve responses to these standard discovery requests. In its response, the City of New York 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 court's Pro Se Intake Unit.
D. Unidentified “Rikers Island Staff”
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 NYCDOC and the New York State Unified Court System to identify: (1) those members of the NYCDOC personnel who were responsible for the Plaintiff's conditions of confinement, as to the prevention of the spread of COVID-19, while Plaintiff was in NYCDOC custody on or about December 20, 2021, and; (2) any NYCDOC employee or New York State Court Officer who sprayed Plaintiff with mace on or about December 20, 2021. It is therefore ordered that the Corporation Counsel of the City of New York, who is the attorney for and agent of the NYCDOC, and the Attorney General of the State of New York, who is the attorney for and agent of the New York State Unified Court System, to ascertain the identity, and if appropriate, shield number, of every individual NYCDOC employee or New York State Unified Court System employee whom Plaintiff seeks to sue here, and the address where each of those individuals may be served. The Corporation Counsel and the Attorney General must provide this information to Plaintiff and the Court within 60 days of the date of this order.
If any those individuals is a current or former NYCDOC employee or official, the Corporation Counsel 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 NYCDOC defendants, rather than by personal service at an NYCDOC facility. If any of these individuals is not a current or former NYCDOC employee or official, but otherwise works or worked at a NYCDOC facility, the Corporation Counsel must provide a residential address where that individual may be served.
Within 30 days of receiving this information, Plaintiff must file an amended complaint naming these newly identified individuals as 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 requesting that the newly identified defendants waive service of summons or directing service on the newly identified defendants.
CONCLUSION
The Court directs the Clerk of Court to mail a copy of this order to Plaintiff, together with an information package.
The Court dismisses Plaintiff's claims against the “New York Department of Corrections” (the NYCDOC). The Court also directs the Clerk of Court to add the City of New York as a defendant. See Fed.R.Civ.P. 21.
The Court further directs the Clerk of Court to electronically notify the NYCDOC and the New York City Law Department of this order. The Court requests that the City of New York waive service of summons.
The Court directs the City of New York to comply with Local Civil Rule 33.2 within 120 days of the date of this order.
The Court directs the Clerk of Court to mail a copy of this order and a copy of the complaint to: (1) the Corporation Counsel of the City of New York, at 100 Church Street, New York, New York 10007; and (2) the Attorney General of the State of New York, at 28 Liberty Street, 15th Floor, New York, New York 10005.
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.