Bennett v. Porter

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DONTAE BENNETT, Plaintiff, -against- 1:23-CV-3216 (VSB) CORRECTIONAL HEALTH SERVICES; MS. ORDER OF SERVICE PORTER; NYC DEPT OF CORRECTIONS; CAPTAIN TOLIVER, Defendants.

VERNON S. BRODERICK, United States District Judge: Plaintiff Dontae Bennett, who is currently held in the Anna M. Kross Center (“AMKC”) on Rikers Island, brings this pro se action under 42 U.S.C. § 1983 seeking damages and injunctive relief. He sues: (1) the New York City Department of Correction (“DOC”); (2) Correctional Health Services (“CHS”), a subdivision of NYC Health + Hospitals (“H+H”) (formerly known as the New York City Health & Hospitals Corporation); (3) “Ms. Porter,” a person who appears to be responsible for treating the mental health of AMKC prisoners; and (4) AMKC Correction Captain Toliver. The Court construes the complaint as asserting claims under Section 1983 as well as related claims under state law.

By order dated April 19, 2023, the court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).1 For the following reasons, the Court dismisses Plaintiff’s claims against the DOC and CHS, and directs the Clerk of Court replace those defendants with the City of New York and H+H. The Court requests that the City of New

1 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).

York and Captain Toliver waive service of summonses. The Court also directs service on Porter and H+H.

DISCUSSION A. Claims against the DOC and CHS Plaintiff’s claims against the DOC must be dismissed because an agency of the City of New York, such as the DOC, is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F. Supp. 2d 385, 395 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”).

Because CHS is a subdivision of H+H, and because H+H is a public benefit corporation created under New York State law and a suable entity, N.Y. Unconsol. Laws §§ 7384(1), 7385(1), the proper defendant for Plaintiff’s claims against CHS is actually H+H. The Court therefore dismisses Plaintiff’s claims against CHS.

In light of Plaintiff’s pro se status and clear intention to assert claims against the City of New York and H+H, however, the Court construes the complaint as asserting claims against the City of New York and H+H, and directs the Clerk of Court to amend the caption of this action to replace the DOC and CHS with the City of New York and H+H, respectively. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses the City of New York and H+H may wish to assert.

B. The City of New York and Captain Toliver The Court directs the Clerk of Court to notify the DOC and the New York City Law Department of this order. The Court requests that the City of New York and Captain Toliver waive service of summonses.

C. H+H and Porter 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.2 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 H+H and Porter 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 each of those defendants. The Clerk of Court is further instructed to issue a summons for each of those defendants and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon those defendants.

If service is not performed on those defendants 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).

2 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 summonses and the complaint until the Court reviewed the complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date that summonses are issued.

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

D. New York Legal Assistance Group (NYLAG) Plaintiff may consult the legal clinic opened in this judicial district to assist people who are parties in civil cases, but who do not have lawyers. The clinic is operated by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or operated by, the court (and, among other things, therefore, it cannot accept filings on behalf of the court, which must still be filed by a pro se party in the court’s 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, New York, New York 10007. Once the paperwork is received, the clinic will coordinate contact with the litigant. Once 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 Court directs the Clerk of Court to mail an information package to Plaintiff.

The Court dismisses Plaintiff’s claims against Correctional Health Services and the New York City Department of Correction, and directs the Clerk of Court to add NYC Health + Hospitals and the City of New York as defendants. See Fed. R. Civ. P. 21.

The Court also directs the Clerk of Court to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that the City of New York and Captain Toliver (a Correction Captain on duty in the Anna M. Kross Center on March 25, 2023) waive service of summonses.

The Court further directs the Clerk of Court to issue summonses for Defendants New York City Health + Hospitals and Porter; complete USM-285 forms with the addresses of those defendants; and deliver all documents necessary to effect service on those defendants to the U.S. Marshals Service.

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).

A flyer, retainer, and intake form from NYLAG are also attached to this order.

SO ORDERED. ~ Dated: April 27, 2023 f | i f New York, New York "tg AA | 5 U0 Le VERNON S. BRODERICK United States District Judge DEFENDANTS AND SERVICE ADDRESSES NYC Health + Hospitals Water Street, 17th Floor New York, New York 10004 Emma Porter c/o Gwendolyn Renee Tarver 49-04 19th Avenue Astoria, New York 11105 Y | A G Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys.

New York Milli Legal Assistance Group Free Legal Assistance for Self-Represented Incarcerated Civil Litigants in Federal District Court e NYLAG Legal Clinic for Pro Se Litigants in The Clinic Can: Southern District of New York is a free legal staffed by attorneys, law students, and « Assist with amending complaints and respondin; to assist those who are representing motions to dismiss; or planning to represent themselves, = Represent litigants for settlement purposes and, incarcerated litigants, in civil lawsuits in limited circumstances, for depositions; Southern District of New York federal court, = Assist with written discovery; habeas cases. The clinic is not part of or = Recruit pro bono counsel for depositions and tris by the court. and en if a litigant has consulted with Clinic staff, = Assist with oppositions to summary judgment. they retain other counsel and that counsel . . ; Clinic staff cannot assist with habeas cases « a notice of appearance, they remain ; : criminal matters. are responsible for doing is necessary in connection with the case; NyT_AG may also be unable to assist if it determines still Se oP □ a ' its professional legal judgement, that (i) you have Gap peas bg Reo rae Ome ae Dante refused to cooperate with the Clinic’s counsel or foll Moynihan Courthouse, 40 Foley Square, way sass . : the Clinic’s advice; (ii) any assistance would be York, New York, or by following the court’s . □□ | @! J unreasonably difficult for NYLAG to carry out; or (ii for filing via email as a pro se litigant. . . . your case is or will become frivolous, unreasonable, 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.

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