Cano v. City of New York

• Court: District Court, S.D. New York
• Decided: June 12, 2023
• Docket: 1:23-cv-03733
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHRISTOPHER HIRAM CANO, Plaintiff, 1:23 Civ. 3733 (LGS) -against- ORDER OF SERVICE CITY OF NEW YORK, et al., Defendants. LORNA G. SCHOFIELD, United States District Judge: Plaintiff, who is currently held in the George R. Vierno Center on Rikers Island, filed this action asserting claims under both federal and state law. By order dated May 4, 2023, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 The Court: (1) requests that the identified defendants waive service of summonses; (2)directs the identified defendants to comply with Local Civil Rule 33.2; and (3) directs the Corporation Counsel of the City of New York to provide the Court and Plaintiff the identities and, if appropriate, badge numbers of the unidentified defendants. DISCUSSION A. Identified defendants The Court directs the Clerk of Court to notify the New York City Department of Correction (“DOC”) and the New York City Law Department of this order. The Court requests that the following defendants waive service of summonses: (1) the City of New York; (2) the Warden of the North Infirmary Command (“NIC”); (3) NIC Deputy Warden Booker; (4) DOC

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). Correction Captain Fernandez; (5) DOC Correction Officer Gomez; and (6) DOC Gang Intelligence Officer Chambers. B. 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 the date of this order, the identified defendants must serve responses to those standard discovery requests. In their responses, the identified defendants must quote each request verbatim.2 C. Unidentified defendants Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying unidentified defendants. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the DOC to identify the unidentified defendants. They include: (1) any DOC personnel involved in transferring Plaintiff, on or about December 15, 2021, from the NIC to any other DOC facility, including the Bellevue Hospital Prison Ward;

(2)any DOC personnel involved in the storage and maintenance of Plaintiff’s personal property at the NIC when Plaintiff was transferred from that facility on or about December 15, 2021, until January 21, 2022; and (3) the DOC Gang Intelligence officer who, along with DOC Gang Intelligence Officer Chambers, on or about January 21, 2022, allegedly returned to Plaintiff seven bags of Plaintiff’s personal property. It is therefore ordered that the Corporation Counsel of

2 If Plaintiff would like copies of those discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the court’s Pro Se Intake Unit. 2 the City of New York, who is the attorney for and agent of the DOC, must ascertain the identity and, if appropriate, badge number of each of the unidentified defendants whom Plaintiff seeks to sue here and the address where each of those defendants may be served.3 The Corporation Counsel must provide this information to Plaintiff and the Court within 60 days of the date of

this order. Within 30 days of receiving this information, Plaintiff must file an amended complaint naming the newly identified defendants. The amended complaint will replace, not supplement, the original complaint. An amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order requesting that the newly identified defendants waive service of summonses, and directing them to comply with Local Civil Rule 33.2. D. New York Legal Assistance Group Plaintiff may consult the legal clinic opened in this judicial district to assist people who are parties in civil cases, but who do not have lawyers. The clinic is operated by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or

operated by, the court (and, among other things, therefore, it cannot accept filings on behalf of the court, which must still be filed by a pro se party in the court’s 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, New York, New York

3 If any unidentified defendant is a current or former DOC employee or official, the Corporation Counsel should note in the response to this order that an electronic request for a waiver of service can be made under the e-service agreement for cases involving DOC defendants, rather than personal service at a DOC facility. If an unidentified defendant is not a current or former DOC employee or official, but otherwise works or worked at a DOC facility, the Corporation Counsel must provide a residential address where that individual may be served. 3 10007. Once the paperwork is received, the clinic will coordinate contact with the litigant. Once 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 directs the Clerk of Court to mail an information package to Plaintiff. The Court also directs the Clerk of Court to notify the New York City Department of Correction (“DOC”) and the New York City Law Department of this order. The Court requests that the following defendants waive service of summonses: (1) the City of New York; (2) the Warden of the North Infirmary Command (“NIC”); (3) NIC Deputy Warden Booker; (4) DOC Correction Captain Fernandez; (5) DOC Correction Officer Gomez; and (6) DOC Gang Intelligence Officer Chambers. The Court further directs those defendants to comply with Local Civil Rule 33.2 within 120 days of the date of this order. The Court additionally directs the Clerk of Court to mail a copy of this order and the complaint to the Corporation Counsel of the City of New York, at 100 Church Street, New York, New York 10007. An amended complaint form is attached to this order. A flyer, retainer, and intake form from NYLAG are also attached to this order. SO ORDERED. Dated: June 12, 2023 . New York, New York J ( , LORNA G. SCHOFIEL UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

_____CV_______________ Write the full name of each plaintiff. (Include case number if one has been assigned) AMENDED -against- COMPLAINT (Prisoner) Do you want a jury trial? ☐Yes ☐ No Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, 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 IV. 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. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a “Bivens” action (against federal defendants). ☐ Violation of my federal constitutional rights ☐ Other: II. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary. First Name Middle Initial Last Name State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit. Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held)

Current Place of Detention Institutional Address

County, City State Zip Code III. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: ☐ Pretrial detainee ☐ Civilly committed detainee ☐ Immigration detainee ☐ Convicted and sentenced prisoner ☐ Other: IV. DEFENDANT INFORMATION To the best of your ability, provide the following information for each defendant. 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 identical to those listed in the caption. Attach additional pages as necessary. Defendant 1: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 2: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 3: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address

County, City State Zip Code Defendant 4: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code V. 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 how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

VI. RELIEF State briefly what money damages or other relief you want the court to order. VII. 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 understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my 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 Prison Address County, City State Zip Code Date on which I am delivering this complaint to prison authorities for mailing: