Carrion v. Kopp

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK GILBERT VERTECON CARRION, Plaintiff, -against- 22-CV-9445 (KMK) MARILYN KOPP; COURTNEY GRIFFIN; MANGEN P. DOULAN; LINDSAY E. ORDER OF SERVICE LINQUENIOUS; MARK J. MILLER; MRS. S.

MARTIN; C.O. RICARDO; SGT. TRISH JOHNSON, Defendants.

KENNETH M. KARAS, United States District Judge: Plaintiff, who is currently incarcerated at Clinton Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that, while he was incarcerated in Green Haven Correctional Facility (“Green Haven”), Defendants violated his rights. By order dated November 7, 2022, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 Plaintiff’s allegations against Defendants Kopp, Griffen, Doulan, Linqenious, Miller, and Martin are unclear, and the Court is unable to discern what claims Plaintiff seeks to assert against them. Plaintiff does, however, allege that on January 1, 2022, Defendant Johnson told Defendant Ricardo to assault Plaintiff. Plaintiff alleges further that Defendant Ricardo lied about the incident, and in a report, Defendant Ricardo stated that Plaintiff threw a lunch tray at him.

Plaintiff alleges that, as a result of Defendant Ricardo’s excessive force, he suffered contusions to his right eye and left cheek and was knocked unconscious. As set forth below, the Court 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). therefore dismisses Plaintiff’s claims against Defendants Kopp, Griffen, Doulan, Linqenious, Miller, and Martin, but grants Plaintiff 60 days’ leave to amend his complaint to allege valid claims against these Defendants; directs service on Defendants C.O. Ricardo and Sgt. Johnson; and applies Local Civil Rule 33.2 to this action.

STANDARD OF REVIEW The Court must dismiss an IFP complaint, or any portion of the complaint, 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 v. 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 of the claims raised. 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). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.

Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible – not merely possible – that the pleader is entitled to relief. Id. DISCUSSION A. Claims against Defendants Kopp, Griffen, Doulan, Linqenious, Miller, and Martin Plaintiff’s complaint is short, but it lacks the facts necessary for the Court to determine whether Plaintiff is entitled to relief. It is not clear what Defendants Kopp, Griffen, Doulan, Linqenious, Miller, and Martin allegedly did or failed to do that harmed Plaintiff. It is also unclear whether Plaintiff’s claims against these Defendants are timely.2 Because such facts are not included, any claim that these Defendants violated Plaintiff’s constitutional rights must be regarded as conclusory and must be dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). In light of Plaintiff’s pro se status, however, the Court grants Plaintiff leave to amend his complaint to state valid claims against Defendants Kopp, Griffen, Doulan, Linqenious, Miller, and Martin.

B. Service on Defendants Ricardo and Jackson Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service.3 Walker v. Schult, 717 F.3d. 119, 123 n.6 The statute of limitations for claims brought pursuant to 42 U.S.C. § 1983 is found in the “general or residual [state] statute [of limitations] for personal injury actions.” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In New York, that period is three years. See N.Y. C.P.L.R. § 214(5). Section 1983 claims generally accrue when a plaintiff knows or has reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013).

3 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have his or before the clerk of served summonses and the complaint until the Court (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)).

To allow Plaintiff to effect service on Defendants C.O. Ricardo and Sgt. Trish Johnson through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for these Defendants. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon Defendants Ricardo and Johnson.

If the complaint is not served within 90 days after the date the summonses are issued, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff’s responsibility to request an extension of time for service).

Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.

C. 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 reviewed the complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. service of the complaint, Defendants must serve responses to these standard discovery requests.

In their responses, Defendants must quote each request verbatim.* CONCLUSION The Court dismisses without prejudice Plaintiff’s claims against Defendants Kopp, Griffen, Doulan, Lingenious, Miller, and Martin. See 28 U.S.C. § 1915(e)(2)(B)(ai). Plaintiff is granted 60 days’ leave to amend his complaint to state valid claims against these Defendants.

The Clerk of Court is instructed to issue summonses for Defendants C.O Ricardo and Sgt.

Trish Johnson, complete the USM-285 forms with the addresses for these Defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service.

Local Civil Rule 33.2 applies to this action.

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 mail an information package to Plaintiff.

SO ORDERED.

Dated: February 28, 2023 Kr If White Plains, New York KENNETH M. KARAS United States District Judge * Tf 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.

DEFENDANTS AND SERVICE ADDRESSES C.O. Ricardo Green Haven Correctional Facility Route 216 Stormville, New York 12582 Sgt. Trish Johnson Green Haven Correctional Facility Route 216 Stormville, New York 12582 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: