UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERT CAMPBELL, Plaintiff, -against- 23-CV-6900 (CS) ANTHONY ANNUCCI, Commissioner, ORDER OF SERVICE NYSDOCCS; CORRECTIONAL SGT. B. JOSEPH; CAPTAIN NIXON; JOHN DOE; JOHN DOE, Defendants. CATHY SEIBEL, United States District Judge: Plaintiff, who is currently incarcerated at Sing Sing Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants denied him the right to “free exercise of Rastafarian culture and to be free from establishment of ‘Rasta Prayer,’ and the denial of congregational worship ‘Jumah Prayer Service,’” in violation of the First and Fourteenth Amendments of the United States Constitution and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq. (ECF No. 10 at 2.) This complaint was originally filed by thirty individuals incarcerated in Sing Sing Correctional Facility, who asked to proceed as a class and applied for pro bono counsel. See Brown v. Annucci, No. 23-CV-6056, ECF No. 1 (“Brown”). By order dated August 7, 2023, the Honorable Laura Taylor Swain, in her capacity as Chief Judge of the court, severed each plaintiff’s claims, opening each as a new case, noting that: each Plaintiff will ultimately need to allege his own set of facts detailing when the denial occurred, how he was affected, and what steps, if any, he took to challenge the denial. (ECF No. 1 at 3.) By order dated October 3, 2023, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 0F DISCUSSION A. Captain Nixon The New York State Attorney General filed a letter dated November 21, 2023, (ECF No. 12), indicating that several Plaintiffs (other than Plaintiff) have clarified that Captain Nixon had “no involvement in any constitutional violation and should therefore not be named as a Defendant in these matters.” Indeed, Plaintiff in this matter has not alleged that Captain Nixon was involved in the events that gave rise to this complaint. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (internal quotation marks omitted). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under Section 1983, a plaintiff must plead and prove the elements of the underlying constitutional
violation directly against the official . . . .” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020). Because Plaintiff has not alleged that Captain Nixon was personally involved in the alleged deprivation of his rights on April 14, 2023, the claims against Captain Nixon are dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
1 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). B. John Doe Defendants Pursuant to the New York State Attorney General’s November 21, 2023 letter, the John Doe Defendant described in the complaint as the “Officer in Charge (OIC)” on April 14, 2023, assigned to Housing Block A during the 7am-3pm shift has been identified as former Correction Officer Patricia Chumney, and the John Doe Defendant described in the complaint as the “Jumah Service Escorting Officer” cannot be identified. In light of Plaintiff’s pro se status, and clear intention to bring claims against former Correction Officer Pamela Chumney, the Clerk of Court is directed, under Rule 21 of the Federal
Rules of Civil Procedure, to substitute former Correction Officer Pamela Chumney as a Defendant, for Defendant John Doe, OIC. This amendment is without prejudice to any defenses that Defendant Chumney may wish to assert. Because the Attorney General has already explained that John Doe, Escorting Officer, cannot be identified, the Court declines, at this time, to issue any order under Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (a pro se litigant is entitled to assistance from the district court in identifying a defendant), seeking the identity of John Doe, Escorting Officer. C. Service on DOCCS Acting Commissioner Annucci, Correctional Sergeant B. Joseph, and former Correction Officer Pamela Chumney 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 1F Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process
2 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 amended complaint until the Court reviewed the amended complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. . . . 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 New York State Department of Corrections and Community Supervision (“DOCCS”) Acting Commissioner Anthony Annucci, Correctional Sergeant B. Joseph, and former Correction Officer Chumney 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. If the amended 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).
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERT CAMPBELL, Plaintiff, -against- 23-CV-6900 (CS) ANTHONY ANNUCCI, Commissioner, ORDER OF SERVICE NYSDOCCS; CORRECTIONAL SGT. B. JOSEPH; CAPTAIN NIXON; JOHN DOE; JOHN DOE, Defendants. CATHY SEIBEL, United States District Judge: Plaintiff, who is currently incarcerated at Sing Sing Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants denied him the right to “free exercise of Rastafarian culture and to be free from establishment of ‘Rasta Prayer,’ and the denial of congregational worship ‘Jumah Prayer Service,’” in violation of the First and Fourteenth Amendments of the United States Constitution and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq. (ECF No. 10 at 2.) This complaint was originally filed by thirty individuals incarcerated in Sing Sing Correctional Facility, who asked to proceed as a class and applied for pro bono counsel. See Brown v. Annucci, No. 23-CV-6056, ECF No. 1 (“Brown”). By order dated August 7, 2023, the Honorable Laura Taylor Swain, in her capacity as Chief Judge of the court, severed each plaintiff’s claims, opening each as a new case, noting that: each Plaintiff will ultimately need to allege his own set of facts detailing when the denial occurred, how he was affected, and what steps, if any, he took to challenge the denial. (ECF No. 1 at 3.) By order dated October 3, 2023, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 0F DISCUSSION A. Captain Nixon The New York State Attorney General filed a letter dated November 21, 2023, (ECF No. 12), indicating that several Plaintiffs (other than Plaintiff) have clarified that Captain Nixon had “no involvement in any constitutional violation and should therefore not be named as a Defendant in these matters.” Indeed, Plaintiff in this matter has not alleged that Captain Nixon was involved in the events that gave rise to this complaint. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (internal quotation marks omitted). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under Section 1983, a plaintiff must plead and prove the elements of the underlying constitutional
violation directly against the official . . . .” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020). Because Plaintiff has not alleged that Captain Nixon was personally involved in the alleged deprivation of his rights on April 14, 2023, the claims against Captain Nixon are dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
1 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). B. John Doe Defendants Pursuant to the New York State Attorney General’s November 21, 2023 letter, the John Doe Defendant described in the complaint as the “Officer in Charge (OIC)” on April 14, 2023, assigned to Housing Block A during the 7am-3pm shift has been identified as former Correction Officer Patricia Chumney, and the John Doe Defendant described in the complaint as the “Jumah Service Escorting Officer” cannot be identified. In light of Plaintiff’s pro se status, and clear intention to bring claims against former Correction Officer Pamela Chumney, the Clerk of Court is directed, under Rule 21 of the Federal
Rules of Civil Procedure, to substitute former Correction Officer Pamela Chumney as a Defendant, for Defendant John Doe, OIC. This amendment is without prejudice to any defenses that Defendant Chumney may wish to assert. Because the Attorney General has already explained that John Doe, Escorting Officer, cannot be identified, the Court declines, at this time, to issue any order under Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (a pro se litigant is entitled to assistance from the district court in identifying a defendant), seeking the identity of John Doe, Escorting Officer. C. Service on DOCCS Acting Commissioner Annucci, Correctional Sergeant B. Joseph, and former Correction Officer Pamela Chumney 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 1F Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process
2 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 amended complaint until the Court reviewed the amended complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. . . . 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 New York State Department of Corrections and Community Supervision (“DOCCS”) Acting Commissioner Anthony Annucci, Correctional Sergeant B. Joseph, and former Correction Officer Chumney 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. If the amended 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. 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 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 Court dismisses Plaintiff’s claims against Captain Nixon. See 28 U.S.C. § 1915(e)(2)(B)(i1). The Clerk of Court is directed, under Rule 21 of the Federal Rules of Civil Procedure, to substitute Correction Officer Pamela Chumney as a Defendant, for Defendant John Doe, OIC. The Court declines, at this time, to issue an order under Valentin vy. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (a pro se litigant is entitled to assistance from the district court in identifying a defendant), seeking the identity of John Doe, Escorting Officer. The Clerk of Court is further instructed to issue summonses for DOCCS Acting Commissioner Anthony Annucci, Correctional Sergeant B. Joseph, and former Correction Officer Pamela Chumney, 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. Plaintiff is referred to the NYLAG Pro Se Clinic. Copies of the Clinic’s flyer, as well as its retainer and intake form, are attached to this order. The Clerk of Court is further directed to mail an information package to Plaintiff. SO ORDERED. Dated: November 27, 2021 White Plains, New York
United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
NYS DOCCS Acting Commissioner Anthony Annucci The Harriman State Campus Albany, New York 12226-2050 Correctional Sergeant B. Joseph Sing Sing Correctional Facility 354 Hunter Street Ossining, New York 10562 Former Correction Officer Pamela Chumney C/O Deputy Counsel Mark Richter Department of Corrections and Community Supervision Office of Counsel The Harriman State Campus, Building 4 1220 Washington Avenue Albany, New York 12226 Y | A G Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys. New York ME Legal Assistance Group Free Legal Assistance for Self-Represented Incarcerated Civil Litigants in Federal District Court
e NYLAG Legal Clinic for Pro Se Litigants in The Clinic Can: Southern District of New York is a free legal staffed by attorneys, law students, and « Assist with amending complaints and respondin; to assist those who are representing motions to dismiss; or planning to represent themselves, = Represent litigants for settlement purposes and, incarcerated litigants, in civil lawsuits in limited circumstances, for depositions; Southern District of New York federal court, = Assist with written discovery; habeas cases. The clinic is not part of or = Recruit pro bono counsel for depositions and tris by the court. and en if a litigant has consulted with Clinic staff, = Assist with oppositions to summary judgment. they retain other counsel and that counsel . . Clinic staff cannot assist with habeas cases « a notice of appearance, they remain : criminal matters. are responsible for doing is necessary in connection with the case; NyT_AG may also be unable to assist if it determines still oe co a a ' its professional legal judgement, that (i) you have petay bg Keo mas met ay Dame refused to cooperate with the Clinic’s counsel or foll Moynihan Courthouse, 40 Foley Square, way sass . □ : the Clinic’s advice; (ii) any assistance would be York, New York, or by following the court’s . □□ i A J □ unreasonably difficult for NYLAG to carry out; or (ii for filing via email as a pro se litigant. . . . your case is or will become frivolous, unreasonable, groundless, or without merit. the Clinic: the clinic and request a copy of our retainer, please call (212) 659-6190 and leave a message or to us at the following address: NYLAG Legal Clinic for Pro Se Litigants Thurgood Marshall Federal Courthouse Room LL22 40 Foley Square New York, NY 10007 mail a signed retainer back to the clinic at the above address. Once the paperwork is received, clinic will contact you. It may take up to two weeks. Disclaimer: The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation.
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