Galliego v. John Doe ( 2021 )

USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED . DOC # CHRISTOPHER GALLEGIO, DATE FILED: _ 2/11/2021 Plaintiff, 21-CV-0284 (VSB) -against- JOHN DOE; N.Y.C. D.O.C. CITY OF NEW ORDER OF SERVICE YORK, Defendants. VERNON S. BRODERICK, United States District Judge: Plaintiff, currently detained at the North Infirmary Command on Rikers Island, brings this pro se action under 42 U.S.C. § 1983, alleging that a John Doe correction officer assaulted him. By order dated January 14, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.’ (Doc. 4.) 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 1s 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). ' Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1). DISCUSSION A. New York City Department of Correction Plaintiff’s claims against the New York City Department of Correction (“DOC”) must be dismissed because an agency of the City of New York is not an entity that can be sued. N.Y. City Charter Ch. 17 § 396 (“All 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 N.Y., 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of N.Y., 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 “N.Y.C. D.O.C. City of New York” 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. Waiver of Service The Clerk of Court is directed to notify the DOC and the New York City Law Department of this order. The Court requests that the City of New York waive service of summons. C. 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 DOC to identify the John Doe defendant, who Plaintiff alleges assaulted him on November 18, 2020, on a bus traveling from “West Facility” to the George R. Vierno Center. It is therefore ordered that the New York City Law Department, which is the attorney for and agent of the DOC, must ascertain the identity and badge number of the John Doe whom Plaintiff seeks to sue here and the address where this defendant may be served.2 The Law Department must provide this information to Plaintiff and the Court within 60 days of the date of this order. Within 30 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 asking the newly added John Doe defendant to waive service. D. 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. Those 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 service of the complaint, the City of New York must serve responses to these standard discovery requests. In their responses, the City must quote each request verbatim.3 CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. 2 If the Doe defendant is a current or former DOC employee or official, the Law Department 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 DOC defendants, rather than by personal service at a DOC facility. If the Doe defendant is not a current or former DOC employee or official, but otherwise works or worked at a DOC facility, the Law Department must provide a residential address where the individual may be served. 3 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 Pro Se Intake Unit. The Court dismisses Plaintiff’s claims against ““N.Y.C. D.O.C. City of New York.” See 28 U.S.C. § 1915(e)(2)(B)(ii).. 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 directed to electronically notify the DOC and the New York City Law Department of this order. The Court requests that Defendant City of New York waive service of summons. The Clerk of Court is further 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. 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: February 11, 2021 Wy | New York, New York Js Aree Teh on Oa VERNON S. BRODERICK United States District Judge