DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: _5/16/2023 CLEON CLARK, Plaintiff, -against- 23-CV-3271 (NSR) HUTCHISON; MARTINEZ; MOUNT ORDER OF SERVICE VERNON POLICE (ALL), Defendants.
NELSON S. ROMAN, United States District Judge: Plaintiff, who is currently detained in the Westchester County Jail, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants used excessive force against him and falsely arrested him. By order dated May 10, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.! 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,”
' 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).
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). DISCUSSION A. “Mount Vernon Police (All)” The Court understands Plaintiff’s naming of “Mount Vernon Police (All)” as a defendant to be an attempt to assert claims against the Mount Vernon Police Department. The Mount
Vernon Police Department is an administrative arm of the City of Mount Vernon. As such, it does “not have a legal identity separate and apart from the municipality, and cannot sue or be sued.” Carroll v. City of Mount Vernon, 707 F. Supp. 2d 449, 451 n.2 (S.D.N.Y. 2010) (relying on Warner v. Village of Goshen Police Dep’t, 256 F. Supp. 2d 171, 175-76 (S.D.N.Y. 2003)). Plaintiff’s claims against the Mount Vernon Police Department must therefore be dismissed. In light of Plaintiff’ s pro se status and clear intention to assert claims against the City of Mount Vernon, the Court construes the complaint as asserting claims against the City of Mount Vernon, and directs the Clerk of Court to amend the caption of this action to replace “Mount Vernon Police (All)” with the City of Mount Vernon. See Fed. R. Civ. P. 21. This amendment is
without prejudice to any defenses the City of Mount Vernon may wish to assert. B. Service on Defendants 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
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 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. 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 Hutchison, Martinez, and the City of Mount Vernon 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 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. C. New York Legal Assistance Group Clinic 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 “Mount Vernon Police (All).” See 28 U.S.C. § 1915(e)(2)(B)(1). The Clerk of Court is directed to add the City of Mount Vernon as a defendant under Fed. R. Civ. P. 21. The Clerk of Court is further instructed to issue summonses for Officers Hutchison and Martinez, and the City of Mount Vernon, 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. Copies of the NYLAG Clinic’s flyer, retainer, and intake form are attached to this order. 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.
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DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: _5/16/2023 CLEON CLARK, Plaintiff, -against- 23-CV-3271 (NSR) HUTCHISON; MARTINEZ; MOUNT ORDER OF SERVICE VERNON POLICE (ALL), Defendants.
NELSON S. ROMAN, United States District Judge: Plaintiff, who is currently detained in the Westchester County Jail, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants used excessive force against him and falsely arrested him. By order dated May 10, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.! 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,”
' 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).
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). DISCUSSION A. “Mount Vernon Police (All)” The Court understands Plaintiff’s naming of “Mount Vernon Police (All)” as a defendant to be an attempt to assert claims against the Mount Vernon Police Department. The Mount
Vernon Police Department is an administrative arm of the City of Mount Vernon. As such, it does “not have a legal identity separate and apart from the municipality, and cannot sue or be sued.” Carroll v. City of Mount Vernon, 707 F. Supp. 2d 449, 451 n.2 (S.D.N.Y. 2010) (relying on Warner v. Village of Goshen Police Dep’t, 256 F. Supp. 2d 171, 175-76 (S.D.N.Y. 2003)). Plaintiff’s claims against the Mount Vernon Police Department must therefore be dismissed. In light of Plaintiff’ s pro se status and clear intention to assert claims against the City of Mount Vernon, the Court construes the complaint as asserting claims against the City of Mount Vernon, and directs the Clerk of Court to amend the caption of this action to replace “Mount Vernon Police (All)” with the City of Mount Vernon. See Fed. R. Civ. P. 21. This amendment is
without prejudice to any defenses the City of Mount Vernon may wish to assert. B. Service on Defendants 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
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 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. 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 Hutchison, Martinez, and the City of Mount Vernon 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 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. C. New York Legal Assistance Group Clinic 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 “Mount Vernon Police (All).” See 28 U.S.C. § 1915(e)(2)(B)(1). The Clerk of Court is directed to add the City of Mount Vernon as a defendant under Fed. R. Civ. P. 21. The Clerk of Court is further instructed to issue summonses for Officers Hutchison and Martinez, and the City of Mount Vernon, 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. Copies of the NYLAG Clinic’s flyer, retainer, and intake form are attached to this order. 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) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is respectfully directed to mail an information package and a copy of this Order to pro se Plaintiff at Plaintiff’s address listed on ECF and to show service on the docket. SO ORDERED. Dated: May 16, 2023 White Plains, New York NELSON S.ROMAN United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
City of Mount Vernon City Hall 1 Roosevelt Square Mount Vernon, NY 10550 Mount Vernon Police Officer Hutchison 2 Detective Christopher Ridley Way Mount Vernon, NY 10550 Mount Vernon Police Officer Martinez 2 Detective Christopher Ridley Way Mount Vernon, NY 10550 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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