Dash v. Downstate Correctional Facility

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK “MARCUS LUGENE DASH, Plaintiff, . 19-CV-5448 (PGG) -againstORDER OF SERVICE DOWNSTATE CORRECTIONAL FACILITY, Defendant. PAUL G. GARDEPHE, United States District Judge: Plaintiff brings this pro se action under 42 U.S.C. § 1983 , alleging that Defendant violated his federal constitutional rights. By order dated July 24, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (“LFP”).! STANDARD OF REVIEW The Court must dismiss an IFP 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 vy. 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). ' 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. Downstate Correctional Facility Plaintiff's claims against Downstate Correctional Facility 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 . Downstate Correctional Facility is not a “person” within the meaning of § 1983. See Willy. Mich. Dep't of State Police, 491 U.S. 58 (1989) (holding that a state is not a “person” for the purpose of § 1983 claims); Zuckerman \. Appellate Div.. Second Dep't Supreme Court, 421 F.2d 625, 626 (2d Cir. 1970) (holding that a court is not a “person” within the meaning of 42 U.S.C. § 1983 ): Whitley v. Westchester Cnty: Corr. Fac. Admin., No. 97-CV-420 (SS), 1997 WL 659100 , at *7 (S.D.N.Y. Oct. 22. 1997) (noting that a correctional facility or jail not a “person” within the meaning of § 1983). Therefore, Plaintiff's claims against Downstate Correctional Facility must be dismissed. See 28 U.S.C. § 1915 (e)(2)(B) Gi). B. Rule 21 of the Federal Rules of Civil Procedure Plaintiff asserts that, in June 2018. an unnamed medical statf person at Downstate Correctional Facility subjected him to a physical examination that violated his constitutional rights. The Clerk of Court is therefore directed, under Rule 21 of the Federal Rules of Civil Procedure, to amend the caption of this action to add John Doe as a Defendant. This amendment is without prejudice to any defenses that this Defendant may wish to assert. John Doe Defendant 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 State Department of Corrections and Community Supervision to identify the medical staff person who examined Plaintiff upon his transfer to Downstate Correctional Facility in June 2018. It is therefore ordered that the New York State Attorney General. who is the attorney for and agent of the New York State Department of Corrections and Community Supervision, must ascertain the identity of the John Doe whom Plaintiff seeks to sue here and the address where the defendant may be served. The New York State Attorney General 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. 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 Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service. 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 Downstate Correctional Facility. See 28 U.S.C. § 1915 (e)(2)(B)(i1). The Clerk of Court is directed to add John Doe as a Defendant under Fed. R. Civ. P. 21. The Clerk of Court is directed to mail a copy of this order and the complaint to the New York State Attorney General at: 28 Liberty Street, 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). The Clerk of Court is directed to docket this as a “written opinion” within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. sy “4a Dated: Tae a cowe? fr New York, New York fo ao. ; € IK, W r is Qed Le ly L 4 TS); PAUL G, GARDEPHE United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK (In the space above enter the full name(s) of the plaintiff(s).) AMENDED COMPLAINT -against- under the Civil Rights Act, 42 U.S.C. § 1983 Jury Trial: O Yes a No (check one) i (In the space above enter the full name(s) of the defendant(s). Ifyou cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed in the above caption must be identical to those contained in Partl. Addresses should not be included here.) I. Parties in this complaint: A. List your name, identification number, and the name and address of your current place of confinement. Do the same for any additional plaintiffs named. Attach additional sheets of paper as necessary. Plaintiff's Name ee IDA Current Institution. Address B. List all defendants’ names, positions, places ofemployment, and the address where each defendant may be served. Make sure that the defendant(s) listed below are identical to those contained in the above caption. Attach additional sheets of paper as necessary. Defendant No. } Name Sel Where Currently Employed Address eee Rev. 61/2010 ] Defendant No. 2 Name eee Sel Where Currently Employed Address eee Defendant No. 3 Name □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Shield Where Currently Employed ee Address ee Who did what? + : Defendant No. 4 Name eee ee Seld Where Currently Employed Address □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ i □□□ Defendant No. 5 Name ee Stet Where Currently Employed Address Il. Statement of Claim: State as briefly as possible the facts of your case. Describe how each of the defendants named in the caption of this complaint is involved in this action, along with the dates and locations ofall relevant □□□□□□□ You may wish to include further details such as the names of other persons involved in the events giving rise to your claims. Do not cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary. A. In what institution did the events giving rise to your claim(s) occur? B. Where in the institution did the events giving rise to your claim(s) occur? Cc, What date and approximate time did the events giving rise to your claim(s) occur? D. Facts: What a □□□ erg coe RR Oe oy cums ce yak a □□ eee ta te ae eo oe ae eecage □□□ □□□□ happened te you? ee Rev. 01/2010 Was anyone ee eee ee else involved? nr a mea a Who else saw what happened? . Ill. Injuries: If you sustained injuries related to the events alleged above, describe them and state what medical treatment, if any, you required and received. IV. Exhaustion of Administrative Remedies: The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Administrative remedies are also known as grievance procedures. A. Did your claim(s) arise while you were confined in a jail, prison, or other correctional facility? Yes No Rev. 01/2010 If YES, name the jail, prison, or other correctional facility where you were confined at the time of the events giving rise to your claim(s). B. Does the jail, prison or other correctional facility where your claim(s) arose have a grievance procedure? Yes NO Do Not Know G; Does the grievance procedure at the jail, prison or other correctional facility where your claim(s) arose cover some or all of your claim(s)? Yes No Do Not Know __ If YES, which claim(s)? 1D. Did you file a grievance in the jail, prison, or other correctional facility where your claim(s) □□□□□□ Yes No If NO, did you file a grievance about the events described in this complaint at any other jail, prison, or other correctional facility? Yes No | L. If you did file a gricvance, about the events described in this complaint, where did you file the grievance? 1. Which claim(s) in this complaint did you grieve? 2. What was the result, if any? 3. What steps, if any, did you take to appeal that decision? Describe all efforts to appeal to the highest level of the grievance process. F, If you did not file a grievance: 1. If there are any reasons why you did not file a grievance, state them here: Rev. 01/2010 2. If you did not file a grievance but informed any officials of your claim, state who you informed, when and how, and their response, if any: G. Please set forth any additional information that is relevant to the exhaustion of your administrative remedies. Note: You may attach as exhibits to this complaint any documents related to the exhaustion of your administrative remedies. V. Relief: State what you want the Court to do for you (including the amount of monetary compensation, if any, that you are seeking and the basis for such amount). ee tt □□ rg a Rev. 01/2010 Vi. Previous lawsuits: O A. Have you filed other lawsuits in state or federal court dealing with the same facts involved in this these action? claims Yes = No B. If your answer to A is YES, describe cach lawsuit by answering questions | through 7 below. (If there is more than one lawsuit, describe the additional lawsuits on another sheet of paper, using the same format.) 1. Parties to the previous lawsuit: Plaintiff Defendants 2.Court (if federal court, name the district; if state court, name the county) 3. Docket or Index number 4. Name of Judge assigned to yourcase 5. Approximate date of filing lawsuit 6. Is the case still pending? Yes = No If NO, give the approximate date of disposition, 7. What was the result of the case? (For example: Was the case dismissed? Was there judgment in your favor? Was the case appealed?) C. Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment? n einer Yes No claims Toe or dD. If your answer to C is YES, describe cach lawsuit by answering questions | through 7 below. (If there is more than one lawsuit. describe the additional lawsuits on another piece of paper, using the same format.) }. Parties to the previous lawsuit: Plaintiff Defendants ppg 2. Court (if federal court, name the district; if state court. name the county) — 3. Docket or Index number 4. Name of Judge assigned to your case. eee 5. Approximate date of filing lawsuit Rev. 01/2010 6. Is the case still pending? Yes = If NO, give the approximate date of disposition. 7. What was the result of the case? (For example: Was the case dismissed? Was there judgment in your favor? Was the case appealed?) I declare under penalty of perjury that the foregoing is true and correct. Signed this day of Signature of Plaintiff 2 Inmate Number ee Institution Address ee Note: All plaintiffs named in the caption of the complaint must date and sign the complaint and provide their inmate numbers and addresses. | declare under penalty of perjury that on this — ss day of — 200, am delivering this complaint to prison authorities to be mailed to the Pro Se Office of the United States District Court for the Southern District of New York. Signature of Plaintiffs Rev. 01/2010