Cummings v. John Doe OMH Provider

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NAJAY CUMMINGS, Plaintiff, -v.- 23 Civ. 11182 (KPF) JOHN DOE OMH PROVIDER; JOHN ORDER DOE/JANE DOE PSYCHIATRISTS; JOHN DOE/JANE DOE PHARMACISTS, Defendants.

KATHERINE POLK FAILLA, District Judge: On March 14, 2024, the Court issued an Order, pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997), directing the New York City Law Department (the “Law Department”), as the attorney for and agent of the New York City Department of Correction (“DOC”), to identify the John and Jane Doe Defendants who were allegedly involved in the events giving rise to Plaintiff’s complaint. (See Dkt. #6). The Court transmitted a copy of the Order to the Law Department, and ordered the Law Department to provide this information to Plaintiff and the Court within sixty days. (Id. at 2).

The Law Department did so by letter filed May 13, 2024, identifying the John/Jane Doe Psychiatrist as James Cassar, who is employed by Correctional Health Services (“CHS”) as a psychiatric nurse practitioner, and the John/Jane Doe Pharmacist as Chelsea Whittaker, who is employed by Physician Affiliate Group of New York, Inc. (“PAGNY”) as a pharmacy technician. (Dkt. #10). The Law Department represented that, despite a review of its records, it cannot ascertain the identity of the John Doe OMH Provider. (Id. at 2). The Law Department further requested a three-week extension of the deadlines in the Valentin Order, to allow it to ascertain the service address for Defendant Whittaker. (Id.).

Separately, Plaintiff filed an application requesting the appointment of pro bono counsel. (Dkt. #9). While the in forma pauperis statute provides that the courts “may request an attorney to represent any person unable to afford counsel,” 28 U.S.C. § 1915(e)(1), in civil cases there is no requirement that courts supply indigent litigants with counsel, see Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). Instead, the courts have “broad discretion” when deciding whether to grant an indigent litigant’s request for representation. Id. To aid in this inquiry, courts consider factors set forth by the Second Circuit in Hodge, in deciding whether to grant a litigant’s request for counsel. Id. at 61-62.

In this case, Plaintiff’s request for counsel is premature, as the Law Department remains in the process of identifying the proper defendants for this action, after which point the Complaint must be amended to reflect those defendants, so that they may be served and brought into the case. To that end, the Court will deny Plaintiff’s request without prejudice to its renewal after the full set of defendants has been identified, the Complaint has been amended, and service has been completed.

CONCLUSION Accordingly, the Law Department’s request for an adjournment of the deadlines set forth in the Valentin Order is hereby GRANTED. The Law Department shall file a service address for Defendant Whittaker on or before May 28, 2024. Thereafter, Plaintiff shall file an amended complaint naming Defendants Cassar, Whittaker, and any others, on or before June 27, 2024.

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

An amended complaint form that Plaintiff should complete is attached to this order. Plaintiff’s request for the appointment of pro bono counsel is DENIED without prejudice to its renewal, after Plaintiff has filed an amended complaint.

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 form with the addresses for the newly named defendants and deliver all documents necessary to effect service to the United States Marshals Service.

The Clerk of Court is directed to: (i) mail a copy of this Order to the New York City Law Department, 100 Church Street, New York, N.Y. 10007; and (ii) mail a copy of this Order, and an information package to Plaintiff at his address of record. The Clerk of Court is further directed to terminate the pending motions at docket entries 9 and 10.

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).

SO ORDERED.

Dated: May 14, 2024 ' ' New York, New York Kathe Mal. kild- KATHERINE POLK FAILLA United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _____CV_______________ (Include case number if one has been Write the full name of each plaintiff. assigned) AMENDED -against- COMPLAINT Do you want a jury trial? ☐ Yes ☐ No 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 II.

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. 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 ☐ 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 (Plaintiff’s 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.

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: ☐ Yes ☐ No 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. = = eee 14 ESE ° .

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