Thompson v. City of New York ( 2021 )

SOUTHERN DISTRICT OF NEW YORK DOCUMENT ELECTRONICALLY FILED KWAINE THOMPSON, pate rizep, 2272027 Plaintiff, -against- 21-CV-10371 (AJN) DEPARTMENT OF CORRECTION; WARDEN ORDER OF SERVICE RENEE; CAPTAIN CARTER; CITY OF NEW YORK, Defendants. ALISON J. NATHAN, United States District Judge: Plaintiff, currently incarcerated in the George R. Vierno Center on Rikers Island, brings this pro se action under 42 U.S.C. § 1983, alleging violations of his constitutional rights. By order dated December 21, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).! 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). ' 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). DISCUSSION A. New York City Department of Correction Plaintiff’s claims against the New York City Department of Correction 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 (“[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.”). B. Waiver of service The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Warden Renee, Captain Carter, and the City of New York waive service of summons. CONCLUSION The Clerk of Court is directed to electronically notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Defendants Warden Renee, Captain Carter, and the City of New York waive service of summons. 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 further directed to mail a copy of this order to Plaintiff together with an information package. SO ORDERED. Dated: December 28, 2021 New York, New York Ai 0) □ ts ALISON J. NATHAN United States District Judge