Nance v. City of New York

DL ELECTRONICALLY FILE!

DOC #:__ UNITED STATES DISTRICT COURT DATE FILED: 9/24/2019 SOUTHERN DISTRICT OF NEW YORK ALLEN TRAVELL NANCE, Plaintiff, 19-CV-5651 (AT) -against- ORDER OF SERVICE CITY OF NEW YORK, et a/., Defendants.

ANALISA TORRES, United States District Judge: Plaintiff, currently incarcerated at Fishkill Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights at Bellevue Hospital, the Anna M. Kross Center (AMKC), and West Facility (WF). He names as defendants the City of New York, New York City Health + Hospitals (H+H), Doe Defendants from Bellevue Hospital (“Bellevue Defendants”), a Jane Doe doctor from AMKC (“AMKC Doctor”), and Doe Defendants from WF (“WF Defendants”). By order dated September 16, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, #7 forma pauperis.

STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, 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 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 constme pro se pleadings liberally, Harris v. Mills ,572 ! 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).

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, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).

DISCUSSION A. H+H and Bellevue Defendants Plaintiff does not state a claim against H+H or the Bellevue Defendants nor does the complaint suggest that the Bellevue Defendants failed to treat Plaintiff’s injuries. Moreover, as Plaintiff did not test positive for measles, the complaint cannot be construed as asserting a claim that H+H or the Bellevue Defendants exposed Plaintiff to measles. The Court therefore dismisses Plaintiff’s claims against H+H and the Bellevue Defendants.

Generally, a pro se complaint should not be dismissed without granting leave to amend if “a liberal reading of the complaint gives any indication that a valid claim might be stated.”

Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted)). Although it is not clear why Plaintiff named H+H and the Bellevue Defendants, it is also not clear that it would be futile to grant him leave to amend. Thus, the Court grants Plaintiff 30 days’ leave to amend the complaint.

B. City of New York and Officer Woods 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 City of New York and Officer Woods waive service of summons.

C. AMKC Doctor 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 Law Department to identify the AMKC Doctor. It is therefore ordered that Law Department, which is the agent of the New York City Department of Correction, must ascertain the identity of the AMKC Doctor and the address where this 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 AMKC Doctor. 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 Jane Doe Defendant and deliver all documents necessary to effect service to the U.S. Marshals Service.

D. WF Defendants Within thirty days of the date of this order, Plaintiff is directed to provide the New York City Law Department with more detailed, descriptive information for the WF Defendants to assist the Law Department in properly identifying these Defendants. Within thirty days after Plaintiff provides this information, the Law Department shall identify the defendants whom Plaintiff seeks to sue here and the addresses where these defendants may be served. 2 CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package.

2 If the person is a current or former DOC employee or official, the Law Department should note in the response to this order that service should be made electronically, under the e- service agreement for cases involving DOC defendants. If the person is or was employed at a DOC facility, but is not a current or former employee of DOC, the Law Department must provide a home address where the individual may be served.

The Court dismisses Plaintiff's claims against H+H and the Bellevue Defendants, with 30 days’ leave to replead. See 28 U.S.C. § 1915(e)(2)(B)(i1).

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 City of New York and Officer Woods waive service of summons.

The Clerk of Court is directed to mail a copy of this order to the New York City Law Department 100 Church Street, New York, NY 10007.

An “Amended Complaint” form 1s attached to this order.

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 1s 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.

Dated: September 24, 2019 New York, New York O- ANALISATORRES) st” United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

_____CV_______________ Write the full name of each plaintiff. (Include case number if one has been assigned) AMENDED -against- COMPLAINT (Prisoner) Do you want a jury trial? ☐ Yes ☐ No

Write the full name of each defendant. If you 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 above must be identical to those contained in Section IV.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

I. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a “Bivens” action (against federal defendants). ☐ Violation of my federal constitutional rights ☐ Other: II. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name Middle Initial Last Name State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit.

Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held) Current Place of Detention Institutional Address County, City State Zip Code III. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: ☐ Pretrial detainee ☐ Civilly committed detainee ☐ Immigration detainee ☐ Convicted and sentenced prisoner ☐ Other: IV. DEFENDANT INFORMATION To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant.

Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary.

Defendant 1: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 2: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 3: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 4: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code V. STATEMENT OF CLAIM Place(s) of occurrence: Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary.

INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

VI. RELIEF State briefly what money damages or other relief you want the court to order.

VII. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11.

I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases.

I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required.

I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff’s Signature First Name Middle Initial Last Name Prison Address County, City State Zip Code

Date on which I am delivering this complaint to prison authorities for mailing: