Lurch, Jr. v. Gorman

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERT DEREK LURCH JR., Plaintiff, -against- JOHN DOE POLICE OFFICER BADGE 23-CV-6704 (JGLC) NUMBER 8520; SERGEANT GORMAN; POLICE OFFICER McKEEVER; POLICE ORDER OF SERVICE OFFICER DROZDIK; POLICE SERGEANT NUNEZ; POLICE OFFICER BEN COSME; POLICE OFFICER CALLOU; CENTRAL BOOKINGS COURT PEN OFFICER, Defendants.

JESSICA G. L. CLARKE, United States District Judge: Plaintiff, who is currently held in the Otis Bantum Correctional Center on Rikers Island, filed this pro se action asserting claims for damages. 1 The Court construes Plaintiff’s complaint as asserting claims under 42 U.S.C. § 1983 and under state law. Plaintiff sues: (1) “John Doe,” a Police Officer assigned to the New York City Police Department’s (“NYPD”) Transit Bureau’s District 4 in Manhattan (“District 4”), and identified only by his/her badge number, “8520” (“Officer 8520”); (2) Police Sergeant Gorman, whom, Plaintiff alleges, is assigned to District 4; (3) Police Officer McKeever, whom, Plaintiff alleges, is assigned to District 4; (5) Police Officer Drozdik, whom, Plaintiff alleges, is assigned to District 4; (6) Police Sergeant Nunez, who appears to be assigned to the NYPD’s 13th Precinct in Manhattan; (7) Police Officer Ben Cosme, who appears to assigned to the 13th Precinct; (8) Police Officer Callou, who appears to be assigned to the 13th Precinct; and (9) “Central Bookings Court Pen Officers,” who appear to be Plaintiff did not file this action while he was in custody. unidentified officers of the New York City Department of Correction (“DOC”) assigned to the DOC’s Central Booking facility in Manhattan.

By order dated August 1, 2023, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. The Court: (1) directs service on all of the identified defendants, including Officer 8520; and (2) directs the Corporation Counsel of the City of New York to provide to Plaintiff and to the Court the name of Officer 8520, as well as the names and, if appropriate, badge numbers of the unidentified defendants.

DISCUSSION A. Service on the identified defendants 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 § 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 the identified defendants, including Officer 8520, 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 summonses for those defendants, and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service on those defendants.

If the complaint is not served 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).

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. Officer 8520 and the unidentified defendants Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying unidentified defendants. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the NYPD and the DOC to identify NYPD Officer 8520 and the unidentified defendants. While the Court has described NYPD Officer 8520 above, the unidentified defendants include those DOC employees who were present in the DOC’s Central Booking facility in Manhattan, on or about July 23, 2023, and who, during that period, interacted with Plaintiff and Correction Lieutenant Foster in that facility when Plaintiff requested that his handcuffs be loosened. It is therefore ordered that the Corporation Counsel of the City of New York, who is the attorney for and agent of the NYPD and the DOC, must ascertain the name of NYPD Officer 8520, as well as the name and, if appropriate, badge number of each of the unidentified defendants whom Plaintiff seeks to sue here and the address where each of those defendants may be served.2 The Corporation Counsel must provide this information to Plaintiff and the Court within 60 days of the date of this order.

Within 30 days of receiving this information, Plaintiff must file an amended complaint naming Officer 8520 by his/her true name, as well as naming the newly identified defendants.

The amended complaint will replace, not supplement, the original complaint. An amended

2 If any unidentified defendant is a current or former DOC employee or official, the Corporation Counsel should note in the response to this order that an electronic request for a waiver of service can be made under the e-service agreement for cases involving DOC defendants, rather than personal service at a DOC facility. If an unidentified defendant is not a current or former DOC employee or official, the Corporation Counsel must provide an address where that individual may be served. 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 requesting that the newly identified defendants waive service of summonses.

C. New York Legal Assistance Group 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 also directs the Clerk of Court to: (1) issue summonses for Defendants “John Doe Police Officer Badge Number 8520,” Police Sergeant Gorman, Police Officer McKeever, Police Officer Drozdik, Police Sergeant Nunez, Police Officer Ben Cosme, and Police Officer Callou; (2) complete USM-285 forms with the addresses for those defendants; and (3) deliver all documents necessary to effect service on those defendants to the U.S. Marshals Service.

The Court further directs the Clerk of Court to mail a copy of this order and a copy of the complaint to the Corporation Counsel of the City of New York, at 100 Church Street, New York, New York 10007.

An amended complaint form is attached to this order.

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

SO ORDERED.

Dated: September 7, 2023 New York, New York > C He Anca (bar Ke OC JESSICA G. L. CLARKE United States District Judge DEFENDANTS AND SERVICE ADDRESSES 1. Police Officer Badge Number 8520 NYPD Transit Bureau District 4 Union Square Subway Station 14th Street/Union Square West New York, New York 10003 2. Police Sergeant Gorman, Badge Number 1868 NYPD Transit Bureau District 4 Union Square Subway Station 14th Street/Union Square West New York, New York 10003 3. Police Officer McKeever NYPD Transit Bureau District 4 Union Square Subway Station 14th Street/Union Square West New York, New York 10003 4. Police Officer Drozdik NYPD Transit Bureau District 4 Union Square Subway Station 14th Street/Union Square West New York, New York 10003 5. Police Sergeant Nunez NYPD 13th Precinct East 21st Street New York, New York 10010-7460 6. Police Officer Ben Cosme NYPD 13th Precinct East 21st Street New York, New York 10010-7460 7. Police Officer Callou NYPD 13th Precinct East 21st Street New York, New York 10010-7460 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CV TT (clu ber if has b Write the full name of each plaintiff. ened) nummer troneines seen -against- AMENDED COMPLAINT □□ Do you want a jury trial? [(1Yes (CINo Write the full name of each defendant. If you need more space, 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 Il.

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. 2/10/17 I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff.

What is the basis for federal-court jurisdiction in your case? [] Federal Question L] Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen?

The plaintiff , ,is a citizen of the State of (Plaintiffs name) (State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.

Page 2 If the defendant is an individual: The defendant, , is a citizen of the State of (Defendant’s name) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of .

If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in .

If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.

II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.

First Name Middle Initial Last Name Street Address County, City State Zip Code Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. 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 the same as those listed in the caption. Attach additional pages if needed.

Defendant 1: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code Defendant 2: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code Defendant 3: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code Defendant 4: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code III. 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 what each defendant personally did or failed to do that harmed you. Attach additional pages if needed.

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

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

V. 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 agree to notify the Clerk's Office in writing of any changes to my mailing 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 Street Address County, City State Zip Code Telephone Number Email Address (if available) I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OlYes If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.

Page 7 Y | A G Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys.

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