Neil v. Silver

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VERNON NEIL, Plaintiff(s), -against- 23-CV-3223 (CS) DOCTOR L. SILVER; R.N, PROVIDER JOHN ORDER OF SERVICE DOE(S); DR. K. KIM; PROVIDERS JANE DOE(S), Defendants.

CATHY SEIBEL, United States District Judge: Plaintiff, who is currently incarcerated at Green Haven Correctional Facility, brings this pro se action alleging that Defendants violated his constitutional rights by showing deliberate indifference to his medical needs. Because Plaintiff asserts that Defendants violated his constitutional rights, the Court construes the complaint as asserting claims under 42 U.S.C. § 1983.

By order dated April 20, 2023, Chief Judge Laura Taylor Swain granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.’ As set forth below, the Court (1) directs service of a summons and complaint on Defendant Dr. L. Silver; (2) dismisses the claims brought against Dr. Kim, for lack of personal involvement, with 60 days’ leave to file an amended complaint; (3) directs the New York State Attorney General to identify the Doe Defendants Plaintiff seeks to sue in this action; and (3) refers Plaintiff to the New York Legal Assistance Group.

| 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(6)(1).

STANDARD 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 construe pro se pleadings liberally, Harris v. Mills, 572 E.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).

DISCUSSION A. Order of Service on Dr. Silver 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? Walker v. Schult, 717 F.3d. 119, 123 n.6 (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 Defendant Dr. Silver 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 this Defendant. The Clerk of Court is further instructed to ? 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 served a summons and the complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon this Defendant.

If the complaint is not served within 90 days after the date the summons is 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.

B. Claims Dismissed as to Dr. Kim for Lack of Personal Involvement To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone vy. N.Y. State Dep’ t of Corr. Serv., 719 F.3d 127, 135 (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, 556 U.S. 662, 676 (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 Hable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official... .” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).

Plaintiff does not allege any facts showing how Defendant Dr. Kim was personally involved in the events underlying his claims. Plaintiff’s claims against this Defendant are therefore dismissed for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii), with 60 days’ leave to file an amended complaint stating facts suggesting that this Defendant was involved personally in violating Plaintiff’s rights. Because any amended complaint Plaintiff may file 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.’

C. Unidentified Defendants 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 (“DOCCS”) to identify the nurses who treated Plaintiff, from July 2021 to April 2022. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of the DOCCS, must ascertain the identity of each Doe Defendant whom Plaintiff seeks to sue here and the address where the defendant may be served. The 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 Doe defendant(s). As noted above, 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 As noted below, the Court refers Plaintiff to the New York Legal Assistance Group (“NYLAG”), an organization that provides limited-scope assistance to individuals who are incarcerated. If Plaintiff intends to file an amended complaint, he may seek advice from a NYLAG attorney regarding the steps he may take to do so.

USM-285 forms with the addresses for the named Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service.

D. New York Legal Assistance Group Plaintiff may consult the legal clinic in this District that assists people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or run by, the court (and, among other things, therefore cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit).

To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, NY, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant. Once the paperwork is received, it may take up to two weeks for the Clinic to contact the litigant. Copies of the Clinic’s flyer, retainer, and intake form are attached to this order.

CONCLUSION The Clerk of Court is instructed to mail an information package to Plaintiff. An amended complaint form is attached to this order, The Clerk of Court is further instructed to issue a summons for Dr. Silver, complete the USM-285 forms with the address for this Defendant, and deliver all documents necessary to effect service to the U.S. Marshals Service.

The Clerk of Court is directed to mail a copy of this order and the complaint to the New York State Attorney General, Managing Attorney’s Office at: 28 Liberty Street, 16th Floor, New York, NY 10005.

SO ORDERED.

Dated: Y | ZS [2 White Plains, New York f / ¢ __MMtigfiodit_ United States District Judge DEFENDANT AND SERVICE ADDRESS Dr. L. Silver Green Haven Correctional Facility Rt. 216 Stormville, NY 12582-0010 RS 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? sing a DYes [3No 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 L. 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 (3 Other: i. 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 Ul. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: Pretrial detainee LC] Civilly committed detainee C} Immigration detainee Convicted and sentenced prisoner Other: Page 2 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 Page 3 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 personaily involved in the alleged wrongful actions. Attach additional pages as necessary.

Page 4 i er INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received. np te VI. RELIEF State briefly what money damages or other relief you want the court to order.

Page 5 VIL 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. 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. | 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 | am delivering this complaint to prison authorities for mailing: Page 6 N ¥ _ A G Since 1990, NYLAG has provided free civil legal services to Lae , New Yorkers who cannot afford private attorneys.

New York Legal Assistance Group Free Legal Assistance for Self-Represented Incarcerated Civil Litigants in Federal District Court NYLAG Legal Clinic for ProSe Litigantsin =F We Clinic Can: Southern District of New York □□ a'free legal... staffed by attorneys, law students, and...» Assist with amending complaints and responding tc aralegals to assist those who are representing | oes motions to dismiss; or planning to represent themselves, = «Represent litigants for settlement purposes and, in incarcerated litigants, in civillawsuitsin _limited circumstances, for depositions; Southern District of New York federal court, =.» Assist with written discovery; habeas cases, The clinic isnot partofor ~ « Recruit pro bono counsel for depositions and trial; by the court. DUR eS and ifa litigant has co nsulted wi th Clinic staff, » Assist with oppositions to summary judgment. they.retain other counsel and that counsel’... . . oe ee Clinie staff cannot assist with habeas cases or a notice of appearance, they.remain’. 2-25. = + SI 2 UES □□ criminal matters. nrepresented; are. responsible fordoing. is necessary in connection with the case; NYLAG may also be unable to assist if it determines, in eee Pro, i its professional legal judgement, that (i) you have a ea ae _ refused to cooperate with the Clinic’s counsel or follow □□ “OUTHLOUse: 40, Frey OdNaN the Clinic’s advice; (ii) any assistance would be York, New York, or by following the courts. wee □□ OU ee dO eee ynreasonably difficult for NYLAG to carry out; or □□□□□ for filing via email as a pro. se litigant, ee your case 1s or will become frivolous, unreasonable, ee _. groundless, or without merit. the Clinic: the clinic and request a copy of our retainer, please call (212) 659-6190 and leave a message or to us at the following address: NYLAG Legal Clinic for Pro Se Litigants Thurgood Marshall Federal Courthouse Room LL22 Foley Square New York, NY 10007 mail a signed retainer back to the clinic at the above address. Once the paperwork is received, clinic will contact you. It may take up to two weeks.

Disclaimer: The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation. ulAdFederation of New York NTA New York Legal Assistance Group LEGAL CLINIC POR PROSE LITIGANTS IN THE SOUTHERA DISTRICT OF REW YORE LIMITED SCOPE LEGAL ASSISTANCE RETAINER AGREEMENT You retain the New York Legal Assistance Group (NYLAG) to provide you with limited scope legal assistance through its Legal Clinic for Pro Se Litigants in the Southern District of New York (Clinic) under the terms set forth below.

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