USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: PETER J. BARKLEY, DATE FILED: 08/26/2024 _ Plaintiff, 24-CV-5017 (NSR) -against- ORDER OF SERVICE OTISVILLE CORRECTIONAL FACILITY, Defendant. NELSON S. ROMAN, United States District Judge: Plaintiff, who currently is incarcerated at Altona Correctional Facility, brings this action, pro se, under

, alleging that staff at Otisville Correctional Facility denied him necessary medical attention. Plaintiff names Otisville Correctional Facility as the sole defendant. By order dated August 5, 2024, Chief Judge Laura Taylor Swain granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. ! As set forth in this order, the Court dismisses the claims brought against Otisville Correctional Facility and directs the New York State Attorney General to identify the individuals whom Plaintiff alleges denied him medical attention. 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

' Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See

(b)(1).

grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills,

(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).

DISCUSSION A. Otisville Correctional Facility Plaintiff’s claims against Otisville Correctional Facility must be dismissed. To state a claim under Section 1983, “the plaintiff must name the ‘person’ who violated or caused the violation of plaintiff’s constitutional rights.’” Whitley v. Westchester Cnty. Corr. Fac. Admin., No. 97-CV-0420 (Sotomayor, J.),

, at *7 (S.D.N.Y. Oct. 22, 1997). Otisville Correctional Facility is not a “person” within the meaning of Section 1983. See, e.g., Will v. Mich. Dep’t of State Police,

(1989) (state is not a “person” for the purpose of Section 1983 claims); Zuckerman v. Appellate Div., Second Dep’t Supreme Court,

(2d Cir. 1970) (court not a “person” within the meaning of Section 1983); Whitley,

, at *7 (correctional facility not a “person” within the meaning of Section 1983). The Court therefore dismisses Plaintiff’s claims against Otisville Correctional Facility for failure to state a claim.2 See

(e)(2)(B)(ii).

2 Plaintiff’s claims also cannot proceed against Otisville, a state correctional facility, because claims against state instrumentalities are barred under the Eleventh Amendment “unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’ Eleventh Amendment immunity.” Gollomp v. Spitzer,

(2d Cir. 2009). New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states’ immunity in enacting Section 1983. See Trotman v. Palisades Interstate Park Comm’n,

, 40 (2d Cir. 1977). B. Unidentified Individuals Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant.

(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 correctional and/or medical staff that allegedly denied

Plaintiff medical attention for his hand, from April 5, 2024, to the date Plaintiff was transferred to Altona Correctional Facility. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of DOCCS, must ascertain the identity and, if relevant, badge number of each John Doe 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 John Doe defendant(s). 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 USM-285 forms with the addresses for the named John Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service. CONCLUSION The Court dismisses Plaintiff’s claims against Otisville Correctional Facility. See

(e)(2)(B)(ii). The Clerk of Court is directed to mail a copy of this order and the complaint to the New York State Attorney General at: Managing Attorney’s Office, 28 Liberty Street, 16th Floor, New York NY 10005. An “Amended Complaint” form is attached to this order. The Clerk of Court is directed to mail an information package to Plaintiff. The Clerk of Court is further directed to mail a copy of this order to pro se Plaintiff at the address listed on ECF and show proof of service on the docket.

SO ORDERED. Dated: August 26, 2024 White Plains, New York NELSON S. ROMÁN United States District Judge 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

(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: