Jude v. New York State Department of Corrections and Community Supervision

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STEVEN JUDE, Plaintiff, 24-CV-8916 (PMH) -against- ORDER OF SERVICE NEW YORK STATE DEPARTMENT OF CORRECTIONS, et al., Defendants.

PHILIP M. HALPERN, United States District Judge: Plaintiff, who currently is incarcerated at Five Points Correctional Facility, brings this action, pro se, under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights at Sullivan Correctional Facility. By order dated December 9, 2024, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 As set forth in this order, the Court (1) dismisses the New York State Department of Corrections and Community Supervision (“DOCCS”) under the Eleventh Amendment; (2) directs service on Defendants DOCCS Commissioner Daniel F. Martuscello; Deputy Commissioner Joseph Noeth; Assistant Commissioner Dawn M Diacaranio; Director of Special Housing Unit (“SHU”) Anthony Rodriguez; Assistant Director of SHU Joshua Shope; Associate Commissioner James Donahue; Antoinette Allen; New York State Office of Mental Health (“OMH”) Commissioner Anne Marie Sullivan; OMH Unit Chief Gregory Savage; Superintendent Stacie R. Bennett; Deputy Superintendent of Mental Health Elizabeth Garber; Deputy Superintendent of Administration Josh Krom; Deputy Superintendent of Programs Dominica Piazza; Hearing Officer 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).

Lisa Marie Bondarenka; Sergeant Lisa Wilson; Sergeant Brett Reed; and Correction Officers Kimberly Bermudez, Justin Murphy, Thomas Coles, Christa Joachin, Cody Olsen, Timothy Fitzpatrick, Christopher Kinne, and Tresean Goodwin; (3) directs the New York State Attorney General to identify the DOCCS Disability Rights Coordinator; badge numbers and service addresses for Officers George Jones and Earl Jones; and a service address for former Deputy Superintendent of Security William Sherman; and (4) directs the Attorney General to notify the Court whether it can accept service on behalf of Officer Dane Rodriguez and Registered Nurse Megan Gerow. Local Civil Rule 33.2 applies to this case.

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. 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(h)(3). While the law mandates dismissal on 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, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).

DISCUSSION A. Claims Against DOCCS “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’ Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). “The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id. New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states’ immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Plaintiff’s § 1983 claims against DOCCS, which is an arm of the state, are therefore barred by the Eleventh Amendment and are dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii).

B. Order of Service 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 Defendants Martuscello, Noeth, Diacaranio, Anthony Rodriguez, Shope, Donahue, Allen, Sullivan, Savage, Bennett, Garber, Krom, Piazza, Bondarenka, Wilson, Reed, Bermudez, Murphy, Coles, Joachin, Olsen, Fitzpatrick, Kinne, and Goodwin 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 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.

2Although 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 effected service until the Court reviewed the complaint and ordered that any summonses be issued. The Court therefore extends the time to serve until 90 days after the date any summonses issue.

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.

C. DOCCS Disability Rights Coordinator Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit DOCCS to identify the Disability Rights Coordinator who Plaintiff names as a defendant. (See Doc. 1 ¶ 16). It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of DOCCS, must ascertain the identity of this Doe defendant 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, the Court will direct the Clerk of Court to add this newly named defendant to the caption of the complaint and issue an order directing the Clerk of Court to complete the USM-285 form with the address for this defendant and deliver all documents necessary to effect service to the U.S. Marshals Service.

D. Service Addresses for current and former Sullivan County Correctional Facility Defendants The Court directs the Attorney General, within 30 days of the date of this order, to provide to the Court badge numbers and service addresses for Officers George Jones and Earl Jones. The Court also directs the Attorney General to provide to the Court a service address for former Deputy Superintendent of Security William Sherman. With 30 days of receiving this information, the Court will issue an order directing the Clerk of Court to 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.

Finally, the Court directs the Attorney General to notify the Court whether it can accept service on behalf of Defendants Dane Rodriguez and Gerow.

E. 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 must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.3 CONCLUSION The Court dismisses Plaintiff’s claims against DOCCS under the Eleventh Amendment.

See 28 U.S.C. § 1915(e)(2)(B)(iii).

The Clerk of Court is instructed to issue summonses for the defendants, listed on the following page, complete the USM-285 form with the address for each of these defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service.

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.

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.

Local Civil Rule 33.2 applies to this case.

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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: White Plains, New York GAM January 30, 2025 PHILIP M. HALPERN United States District Judge SERVICE ADDRESS FOR EACH DEFENDANT Commissioner Daniel F. Martuscello New York State Department of Corrections and Community Supervision The Harriman State Campus 1220 Washington Avenue Albany, NY 12226 Deputy Commissioner Joseph Noeth New York State Department of Corrections and Community Supervision The Harriman State Campus 1220 Washington Avenue Albany, NY 12226 Assistant Commissioner Dawn M Diacaranio New York State Department of Corrections and Community Supervision The Harriman State Campus 1220 Washington Avenue Albany, NY 12226 Director of SHU Anthony Rodriguez New York State Department of Corrections and Community Supervision The Harriman State Campus 1220 Washington Avenue Albany, NY 12226 Assistant Director of SHU Joshua Shope New York State Department of Corrections and Community Supervision The Harriman State Campus 1220 Washington Avenue Albany, NY 12226 Associate Commissioner James Donahue New York State Department of Corrections and Community Supervision The Harriman State Campus 1220 Washington Avenue Albany, NY 12226 Antoinette Allen New York State Department of Corrections and Community Supervision The Harriman State Campus 1220 Washington Avenue Albany, NY 12226 Commissioner Anne Marie Sullivan Office of Mental Health Holland Avenue Albany, NY 12229 OMH Unit Chief Gregory Savage Office of Mental Health Holland Avenue Albany, NY 12229 Superintendent Stacie R. Bennett Ulster Correctional Facility Berme Road P.O. Box 800 Napanoch, NY 12458-0800 Deputy Superintendent of Mental Health Elizabeth Garber Eastern Correctional Facility Institution Rd P.O. Box 338 Napanoch, NY 12458-0338 Deputy Superintendent of Administration Josh Krom Sullivan Correctional Facility Riverside Dr. Fallsburg, NY 12733 Deputy Superintendent of Programs Dominica Piazza Marcy Correctional Facility 9000 Old River Road P.O. Box 5000 Marcy, NY 13403-5000 Hearing Officer Lisa Marie Bondarenka Eastern Correctional Facility Institution Rd P.O. Box 338 Napanoch, NY 12458-0338 Sergeant Lisa Wilson Eastern Correctional Facility Institution Rd P.O. Box 338 Napanoch, NY 12458-0338 Sergeant Brett Reed Auburn Correctional Facility State Street Auburn, NY 13024-9000 Correction Officer Kimberly Bermudez Five Points Correctional Facility 6600 State Route 96 Caller Box 400 Romulus, NY 14541 Correction Officer Justin Murphy Woodbourne Correctional Facility Prison Road P.O. Box 1000 Woodbourne, NY 12788-1000 Correction Officer Thomas Coles Mid-State Correctional Facility 9005 Old River Road P.O. Box 216 Marcy, NY 13403-0216 Correction Officer Christa Joachin Sullivan Correctional Facility Riverside Dr. Fallsburg, NY 12733 Correction Officer Cody Olsen Sullivan Correctional Facility Riverside Dr. Fallsburg, NY 12733 Correction Officer Timothy Fitzpatrick Eastern Correctional Facility Institution Rd P.O. Box 338 Napanoch, NY 12458-0338 Correction Officer Christopher Kinne Woodbourne Correctional Facility Prison Road P.O. Box 1000 Woodbourne, NY 12788-1000 Correction Officer Tresean Goodwin Sullivan Correctional Facility Riverside Dr. Fallsburg, NY 12733