Opinion
23 Civ. 11063 (LGS)
01-11-2024
JOHN A. WILSON, Plaintiff, v. CAPTAIN LESLIE; OFFICER RIVERA; TACTICAL TEAM OF 47TH PRECINT, Defendants.
ORDER OF SERVICE
LORNA G. SCHOFIELD, United States District Judge:
Plaintiff, who is currently incarcerated at Elmira Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. By order dated January 4, 2024, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.
Plaintiff was detained on Rikers Island at the time he filed this action. According to records maintained by the New York State Department of Corrections and Community Supervision, Plaintiff was admitted to Elmira Correctional Facility on January 5, 2024. See https://nysdoccslookup.doccs.ny.gov/.
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. The “Tactical Team” of the 47th Precinct
Plaintiff's claims under 42 U.S.C. § 1983 against the “Tactical Team of the 47th Precinct” must be dismissed. Section 1983 provides that an action may be maintained against a “person” who has deprived another of rights under the “Constitution and Laws.” 42 U.S.C. § 1983. The Tactical Team of the 47th Precinct is not a “person” within the meaning of Section 1983. See DeJesus v. Squad, No. 19-CV-6497, 2019 WL 3958404, at *2 (S.D.N.Y. Aug. 21, 2019) (holding “42nd Precinct Detective Squad” not a “person” under Section 1983 (citing, inter alia, Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989)); see also Zuckerman v. App. Div., Second Dep't S.Ct., 421 F.2d 625, 626 (2d Cir. 1970) (court not a “person” within the meaning of 42 U.S.C. Section 1983).
In light of Plaintiff's pro se status and clear intention to assert claims against the individual Tactical Team officers who allegedly violated his rights, the Court construes the complaint as asserting claims against those John Doe officers and directs the Clerk of Court to amend the caption of this action to replace the “Tactical Team of the 47th Precinct” with “John Doe Officer or Officers of the 47th Precinct.” See Fed.R.Civ.P. 21. This amendment is without prejudice to any defenses the John Doe defendants may wish to assert.
B. Valentin order
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 New York City Police Department (“NYPD”) to identify the John Doe “Tactical Team” officer or officers who were involved in allegedly placing Plaintiff in his cell at 47th Precinct on or around October 17, 2023. It is therefore ordered that the New York City Law Department, which is the attorney for and agent of the NYPD, 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 Law Department must 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(s). 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 defendant(s) and deliver all documents necessary to effect service to the U.S. Marshals Service.
C. Service on Leslie and Rivera
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 a summons 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.
To allow Plaintiff to effect service on Defendants Captain Leslie and Officer Rivera 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.
If the complaint is not served within 90 days after the date summonses are issued, 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).
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 Court dismisses Plaintiff's claims against the “Tactical Team of the 47th Precinct.” See 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is directed to add “John Doe Officer or Officers of the 47th Precinct” as a defendant under Fed.R.Civ.P. 21.
The Clerk of Court is also directed to mail a copy of this order and the complaint to the New York City Law Department at: 100 Church Street, New York NY 10007.
An Amended Civil Rights Complaint form is attached to this order.
The Clerk of Court is further directed to issue summonses for Captain Leslie and Officer Rivera, complete the USM-285 forms with the addresses for these defendants, and deliver all documents necessary to effect service to the U.S. Marshals 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 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 of Court is also directed to mail an information package to Plaintiff.
SO ORDERED.
DEFENDANTS AND SERVICE ADDRESSES
1. Captain Leslie
New York City Police Department 47th Precinct
4111 Laconia Avenue
Bronx, NY 10466
2. Officer Rivera
New York City Police Department 47th Precinct
4111 Laconia Avenue
Bronx, NY 10466