UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK WALTER HERRING, Plaintiff, 20-CV-10088 (LLS) -against- ORDERTO AMEND MEDICAL STAFF UNIT; ORANGE COUNTY JAIL, Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff, currently detained at the Orange County Jail (OCJ), brings this pro se action under

, alleging that Defendants have denied him a proper wheelchair, as well as other allegations regarding his medical care atOCJ. By order dated January 28, 2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.1 For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order. 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.

(e)(2)(B), 1915A(b); see Abbas v. Dixon,

(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 construe pro se pleadings liberally, Harris v. Mills, 572

1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis.See

(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,

(2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). BACKGROUND Plaintiff, who is a pretrial detainee at OCJ,brings this complaint regarding his medical

treatment at OCJ. He names as defendants OCJ and the “Medical Staff Unit” (MSU). He alleges that the events giving rise to his claims occurred from 2017through 2020whenDefendants denied him (1) a proper wheelchair; (2) the correct fitting for a suction cup for his prosthetic leg; and (3) treatment for his back pain and a foot condition(“foot condition claim”). He also alleges that Defendants shared his medical information with other prisoners and falsely claimed that he had a sexually transmitted disease(“disclosure claim”). Plaintiff seeks money damages. Before initiating this action, Plaintiff filed another lawsuit against individual correctional staff at OCJ. See Herring v. Kiszke, ECF7:20-CV-8765, 1 (S.D.N.Y. filed Oct. 20).Relevant to this order,Plaintiff alleged in this prior filing that (1) OCJ medical staff failed to provide him with medical treatment for a foot conditionand (2) correctional staff placed him in danger by

publicly discussing his medical conditionsSee id.at 3-4. DISCUSSION A. Duplicate claims Plaintiff raises his foot condition and disclosure claims in both this action and the 20-CV- 8765 action. As no useful purpose would be served by litigating these claims in both lawsuits, the foot condition and disclosure claims are dismissed without prejudice to Plaintiff’s litigating those two claims in the 20-CV-8765 matter. B. Orange County Jail and “Medical Staff Unit” Plaintiff’s claims against OCJ and MSU must be dismissed because city agencies or departments do not have the capacity to be sued under New York law. See Omnipoint Commc’ns, Inc. v. Town of LaGrange,

(S.D.N.Y. 2009) (“In New York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains,

(S.D.N.Y. 2002) (“Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued.”); see alsoN.Y. Gen. Mun. Law § 2 (“The term ‘municipal corporation,’ as used in this chapter, includes only a county, town, city and village.”). C. Medical claims Because Plaintiff alleges that correctional staff have denied him a proper wheelchair,a suction cup for his prostheticleg, as well as denied him treatment for his back pain,the Court construes the complaint as asserting medical claims under

. To state a claim under § 1983, Plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins,

(1988). The claims arise under

the Due Process Clause of the Fourteenth Amendment because Plaintiffwas a pretrial detainee when correctional staff allegedly denied him medical care.Bell v. Wolfish,

, 536 n.16 (1979); Darnell v. Pineiro,

(2d Cir. 2017). To state a medical claim under the Fourteenth Amendment, a plaintiff must state facts suggesting that (1) his medical conditions are sufficiently serious (the “objective element”), and (2) correctional staff acted with at least deliberate indifference to the challenged conditions (the “subjective element”).See Darnell,

. For the objective element, a pretrial detainee “must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health” or safety, which “includes the risk of serious damage to ‘physical and mental soundness.’” Id.at 30 (citing Walker v. Schult,

(2d Cir. 2013), and quoting LaReau v. MacDougall,

(2d Cir. 1972)).

For the subjective element, a pretrial detainee must allege “that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Id.at 35. Thus, a “mere disagreement over the proper treatment” is not actionable under § 1983.See Chance v. Armstrong,

(2d Cir. 1998). Moreover, the negligence of a correction official is not a basis for a claim of a federal constitutional violation under § 1983. See Daniels v. Williams,

(1986); Davidson v. Cannon,

(1986).

Here, Plaintiff alleges that he was been denied a proper wheelchair, a properly fitted suction cup, and treatment for his back pain. But he does not assert any facts suggesting that correctional staff (1) failed to act with reasonable care to mitigate arisk posed byany of these conditions and(2) knew, or should have known, that not providing him treatment posed an excessive risk to his health or safety. Moreover, it is unclear from the complaint whether Plaintiff and correctional staff simply disagreed over Plaintiff’s treatment of his various medical conditions. Thus, because the complaint does not contain sufficient facts to state a claim, the Court grantsPlaintiff leave to file anamended complaint. D. Personal involvement The Court also grants Plaintiff leave to name the individual defendants personally involved in violating his rights. To state a claim under § 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep’ t of Corr. Serv.,

(2d Cir. 2013) (“It

is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (internal quotation marks omitted). A defendant may not be held liable under § 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal,

(2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official.” Tangreti v. Bachmann,

(2d Cir. 2020). Here, Plaintiff asserts that during a three-year period, correctional staff denied him proper

medical treatment. But he does not state who specifically denied him care and for which condition.Plaintiff is therefore granted leave to amend his complaint to name the individual defendants who participated in each alleged violation. LEAVE TO AMEND Plaintiff is granted leave to amend his complaint to provide more facts about his medical claims. In the “Statement of Claim” section of the amended complaint form,Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant.2 If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include: a) the names and titles of all relevant people;

b) a description of all relevant events, includingwhat each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred; c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief. Essentially, Plaintiff’s amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.

Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint,any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.

2 If Plaintiff does not know the name of a defendant, he may refer to that individual as “John Doe” or “Jane Doe” in both the caption and the body of the amended complaint. The naming of John Doe defendants, however, does not toll the three-year statute of limitations period governing this action and Plaintiff shall be responsible for ascertaining the true identity of any “John Doe” defendants and amending his complaint to include the identity of any “John Doe” defendants before the statute of limitations period expires. CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 20-CV-10088 (LLS). An Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. The Court dismisses all claims brought against Orange County Jail and Medical Staff Unit for failure to state a claim. See

(e)(2)(B)(ii). The Court also dismisses Plaintiff’s foot condition and disclosure claims without prejudice to his litigating these claims in the 20-CV-8765 matter. SO ORDERED. Dated: March 15, 2021 New York, New York Leis Lo Staaten Louis L. Stanton U.S.D.J.

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? 0mNd—MN L1Yes LINo

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.

Rev. 5/20/16

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

(against state, county, or municipal defendants) or ina “Bivens” action (against federal defendants). L] Violation of my federal constitutional rights L] Other: Il. 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 II. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: L] Pretrial detainee L] Civilly committed detainee L] Immigration detainee L] Convicted and sentenced prisoner L] 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: