Auguste v. Department of Corrections

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JEAN R. AUGUSTE, JR., Plaintiff, -against- DEPARTMENT OF CORRECTIONS; DEVON 24 Civ, 921 (PAE) DEPARTMENT OF HOMELESS SERVICES: ORDER OF SERVICE PROECT RENEWAL; CAPTAIN KELLY; OFFICER CARUSO; OFFICER OSBORNE; SAMUEL CHRISTOPHER DEPAOLA, Defendants.

PAUL A. ENGELMAYER, United States District Judge: Plaintiff, who currently is detained at the Otis Bantum Correctional Center on Rikers Island, brings this action, pro se, under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights and his rights under state law. By order dated February 28, 2024, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.!

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 secks monetary relief from a defendant whe 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(4)(G). While the law mandates dismissal on | 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)(L). 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).

DISCUSSION A. Claims against Municipal Agencies Plaintiff’s claims against the New York City Department of Correction and New York City Department of Homeless Services must be dismissed because an agency of the City of New York is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“[A]Il 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, 396 (S.D.N.Y. 2010) (“{A] plaintiff is generally prohibited from suing a municipal agency.”).

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

B. Waiver of Service The Clerk of Court is directed 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; Captain Kelly, Shield # 595 or 694; Officer Caruso, Shield # 1164; and Officer Osborne, Shield # 12425, waive service of summons.

Service on Remaining 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.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 shail 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 Devon M. Radlin, Ilissa Brownstein, Samuel Christopher DePaola, and Project Renewal 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 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 these defendants.

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

* 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 summonses are issued.

D. 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 service of the complaint, Defendants City of New York, Captain Kelly, and Officers Caruso and Osborne must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.

CONCLUSION The Court dismisses Plaintiff’s claims against the New York City Department of Correction and New York City Department of Homeless Services. See N.Y. City Charter ch. 17, § 396, The Clerk of Court is directed to add the City of New York as a Defendant under Fed. R. Civ. P. 21.

The Clerk of Court is directed to electronically notify the New York City Department of Correction and the New York City Law Department of this order, The Court requests that Defendants City of New York; Captain Kelly, Shield # 595 or 694; Officer Caruso, Shield # 1164; and Officer Osborne, Shield # 12425, waive service of summons.

The Clerk of Court is further directed to issue summonses for Devon M. Radlin, Ilissa Brownstein, Samuel Christopher DePaola, and Project Renewal, 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.

3 If 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.

The Cierk of Court is also directed to mail an information package to Plaintiff.

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).

SO ORDERED.

Dated: March 11, 2024 . a New York, New York LAA i f 4 A □ AAPA RA CP EP PIE ee ip es fb. Ssnaanat [Fo vit AE PAULA. ENGELMAYER United States District Judge DEFENDANTS AND SERVICE ADDRESSES 1. Devon M. Radlin West 34" Street, 18" Floor New York, NY 10120 2. Ilissa Brownstein Exchange Place, Suite 1000 New York, NY 10005 3. Samuel Christopher DePaola 42-40 Bell Blvd., Suite 201 Bayside, NY 11361 4, Project Renewal Bowery New York, NY 10002