UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PHILLIP BLACKWOOD, Plaintiff, 23-CV-1297 (KMK) -against- ORDER OF SERVICE WESTCHESTER COUNTY JAIL, Defendant. KENNETH M. KARAS, United States District Judge: Plaintiff, who currently is in pretrial detention at the Westchester County Jail (“WCJ”), brings this pro se action under 42 U.S.C. § 1983, alleging that on December 23, 2022, at the WCJ, Correction Officer Cox used excessive force during an incident with Plaintiff.1 By order dated March 23, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.2 As set forth in this order, the Court (1) dismisses WCJ because it is an entity that cannot be sued, (2) adds as defendants Westchester County and Officer Cox, under Rule 21 of the Federal Rules of Civil Procedure; (3) orders service on Defendants Westchester County and Officer Cox, (4) applies Local Civil Rule 33.2 to this case, and (5) refers Plaintiff to the New York Legal Assistance Group. 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
1 Plaintiff states that the incident occurred on December 22, 2023, but an attachment to the complaint indicates that the incident occurred on December 22, 2022. (See ECF 1, at 13.) 2 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). who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see also 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 (2d Cir. 2006) (quotation marks and citations omitted) (emphasis in original). DISCUSSION A. Westchester County Jail Plaintiff’s claims against the WCJ must be dismissed because city agencies or departments do not have the capacity to be sued under New York law. See Omnipoint Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) (“In New York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and
cannot sue or be sued.”); N.Y. Gen. Mun. Law § 2 (“The term ‘municipal corporation,’ as used in this chapter, includes only a county, town, city and village.”). WCJ is operated by the Westchester County Department of Corrections, a municipal department that cannot be sued. In light of Plaintiff’s pro se status and clear intention to assert claims against Westchester County, the Court construes the complaint as asserting claims against Westchester County, and directs the Clerk of Court to amend the caption of this action to replace the WCJ with Westchester County. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses Westchester County may wish to assert. B. Correction Officer Cox To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988). Plaintiff alleges in his complaint that Officer Cox used excessive force
against him, in violation of his federal rights. Accordingly, the Court construes the complaint as asserting claims against Correction Officer Cox #1288 and directs the Clerk of Court to amend the caption of this action to add Officer Cox. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses Officer Cox may wish to assert. C. Order of Service on Westchester County and Officer Cox 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.3 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 Westchester County and Officer Cox 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 Defendants.
3 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. If the complaint is not served 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. D.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PHILLIP BLACKWOOD, Plaintiff, 23-CV-1297 (KMK) -against- ORDER OF SERVICE WESTCHESTER COUNTY JAIL, Defendant. KENNETH M. KARAS, United States District Judge: Plaintiff, who currently is in pretrial detention at the Westchester County Jail (“WCJ”), brings this pro se action under 42 U.S.C. § 1983, alleging that on December 23, 2022, at the WCJ, Correction Officer Cox used excessive force during an incident with Plaintiff.1 By order dated March 23, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.2 As set forth in this order, the Court (1) dismisses WCJ because it is an entity that cannot be sued, (2) adds as defendants Westchester County and Officer Cox, under Rule 21 of the Federal Rules of Civil Procedure; (3) orders service on Defendants Westchester County and Officer Cox, (4) applies Local Civil Rule 33.2 to this case, and (5) refers Plaintiff to the New York Legal Assistance Group. 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
1 Plaintiff states that the incident occurred on December 22, 2023, but an attachment to the complaint indicates that the incident occurred on December 22, 2022. (See ECF 1, at 13.) 2 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). who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see also 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 (2d Cir. 2006) (quotation marks and citations omitted) (emphasis in original). DISCUSSION A. Westchester County Jail Plaintiff’s claims against the WCJ must be dismissed because city agencies or departments do not have the capacity to be sued under New York law. See Omnipoint Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) (“In New York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and
cannot sue or be sued.”); N.Y. Gen. Mun. Law § 2 (“The term ‘municipal corporation,’ as used in this chapter, includes only a county, town, city and village.”). WCJ is operated by the Westchester County Department of Corrections, a municipal department that cannot be sued. In light of Plaintiff’s pro se status and clear intention to assert claims against Westchester County, the Court construes the complaint as asserting claims against Westchester County, and directs the Clerk of Court to amend the caption of this action to replace the WCJ with Westchester County. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses Westchester County may wish to assert. B. Correction Officer Cox To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988). Plaintiff alleges in his complaint that Officer Cox used excessive force
against him, in violation of his federal rights. Accordingly, the Court construes the complaint as asserting claims against Correction Officer Cox #1288 and directs the Clerk of Court to amend the caption of this action to add Officer Cox. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses Officer Cox may wish to assert. C. Order of Service on Westchester County and Officer Cox 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.3 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 Westchester County and Officer Cox 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 Defendants.
3 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. If the complaint is not served 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. 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 must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.4 E. New York Legal Assistance Group Plaintiff may consult the legal clinic in this District that assists people who are parties in
civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or run by, the court (and, among other things, therefore cannot accept filings on behalf of the court, which must still be made by any pro se party through the 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, NY, NY 10007. Once
4 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 paperwork is received, the Clinic will coordinate contact with the litigant. Once the paperwork is 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 Clerk of Court is directed to mail an information package to Plaintiff.
The Court dismisses Plaintiff’s claims against Westchester County Jail. See 28 U.S.C. §1915(e)(2)(B)(ii). The Clerk of Court is directed to add Westchester County and Correction Officer Cox #1288 as Defendants under Fed. R. Civ. P. 21. The Clerk of Court is instructed to issue summonses for Westchester County and Officer Cox #1288, 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. 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 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: June 1, 2023 White Plains, New York KENNETH M. KARAS United States District Judge DEFENDANTS AND SERVICE ADDRESSES
Westchester County Law Department 148 Martine Avenue White Plains, NY 10601 Correction Officer Cox #1288 Westchester County Jail P.O. Box 10, Woods Rd. Valhalla, NY 10595