USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED DOC #: RONALD R. COLSON, DATE FILED: 3/28/2023 Plaintiff(s), -against- COMMISSIONER ANTHONY J. ANNUCCTI; 23-CV-0654 (NSR) SUPERINTENDENT M. CAPRA; SGT. SANCHEZ; C.O. BEADLE; C.O. K. GREEN; ORDER OF SERVICE C.O. ROSS; C.O. ORTIZ; S.O.R.C. J. MANUEL; and THE STATE OF NEW YORK, Municipality, Defendants.
NELSON S. ROMAN, United States District Judge: Plaintiff, currently incarcerated at Green Haven Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants unlawfully searched him and provided him with a procedurally defective disciplinary hearing. He names as Defendants: (1) Anthony Annucci, the Commissioner of the Department of Corrections and Community Supervision (“DOCCS”); (2) Michael Capra, Sing Sing Superintendent; (3) Sing Sing Officers Sanchez, Beadle, Green, Ross, Ortiz, Manuel, and Venettozzi;! and (4) the State of New York. By order dated February 27, 2023, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).” As set forth below, the Court: (1) dismisses the claims brought against the State of New York under the Eleventh Amendment;
' Plaintiff’s spelling of this defendant is not the same throughout the complaint, but this spelling appears to be the most common for this name. Plaintiff did not include this defendant in the caption of the complaint but listed him as a defendant in the body of the complaint. The Court therefore directs the Clerk of Court to add this officer as a defendant. ? 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).
(2) dismisses the claims brought against Commissioner Annucci for lack of personal involvement; and (3) directs service on Capra, Sanchez, Beadle, Green, Ross, Ortiz, Manuel, and Venettozzi. 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 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). DISCUSSION A. State of New York “[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 brings claims against the State of New York, asserting that it is a “municipal corporation.” (ECF 2, at 3.) New York State, however, is a state government entitled to Eleventh Amendment immunity. Plaintiff’s § 1983 claims against this defendant are therefore dismissed because they seek monetary relief from a defendant immune from such relief. See 28 U.S.C.
§ 1915(e)(2)(B)(iii). B. Lack of Personal Involvement To state a claim under § 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 § 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 § 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). Plaintiff brings claims against Commissioner Annucci because he is a supervisor at DOCCS “headquarters.” (ECF 2, at 2.) Plaintiff does not allege, however, any facts showing how Annucci was personally involved in the events underlying his claims. Plaintiff’s claims against the Commissioner are therefore dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). C. 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.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 Capra, Sanchez, Beadle, Green, Ross, Ortiz, Manuel, and Venettozzi 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.
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USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED DOC #: RONALD R. COLSON, DATE FILED: 3/28/2023 Plaintiff(s), -against- COMMISSIONER ANTHONY J. ANNUCCTI; 23-CV-0654 (NSR) SUPERINTENDENT M. CAPRA; SGT. SANCHEZ; C.O. BEADLE; C.O. K. GREEN; ORDER OF SERVICE C.O. ROSS; C.O. ORTIZ; S.O.R.C. J. MANUEL; and THE STATE OF NEW YORK, Municipality, Defendants.
NELSON S. ROMAN, United States District Judge: Plaintiff, currently incarcerated at Green Haven Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants unlawfully searched him and provided him with a procedurally defective disciplinary hearing. He names as Defendants: (1) Anthony Annucci, the Commissioner of the Department of Corrections and Community Supervision (“DOCCS”); (2) Michael Capra, Sing Sing Superintendent; (3) Sing Sing Officers Sanchez, Beadle, Green, Ross, Ortiz, Manuel, and Venettozzi;! and (4) the State of New York. By order dated February 27, 2023, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).” As set forth below, the Court: (1) dismisses the claims brought against the State of New York under the Eleventh Amendment;
' Plaintiff’s spelling of this defendant is not the same throughout the complaint, but this spelling appears to be the most common for this name. Plaintiff did not include this defendant in the caption of the complaint but listed him as a defendant in the body of the complaint. The Court therefore directs the Clerk of Court to add this officer as a defendant. ? 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).
(2) dismisses the claims brought against Commissioner Annucci for lack of personal involvement; and (3) directs service on Capra, Sanchez, Beadle, Green, Ross, Ortiz, Manuel, and Venettozzi. 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 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). DISCUSSION A. State of New York “[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 brings claims against the State of New York, asserting that it is a “municipal corporation.” (ECF 2, at 3.) New York State, however, is a state government entitled to Eleventh Amendment immunity. Plaintiff’s § 1983 claims against this defendant are therefore dismissed because they seek monetary relief from a defendant immune from such relief. See 28 U.S.C.
§ 1915(e)(2)(B)(iii). B. Lack of Personal Involvement To state a claim under § 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 § 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 § 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). Plaintiff brings claims against Commissioner Annucci because he is a supervisor at DOCCS “headquarters.” (ECF 2, at 2.) Plaintiff does not allege, however, any facts showing how Annucci was personally involved in the events underlying his claims. Plaintiff’s claims against the Commissioner are therefore dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). C. 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.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 Capra, Sanchez, Beadle, Green, Ross, Ortiz, Manuel, and Venettozzi 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.
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. D. New York Legal Assistance Group Plaintiff may consult the legal clinic opened in this District to assist 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 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. E. 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 CONCLUSION The Clerk of Court is directed to add as a defendant Correction Officer Venettozzi. See Fed. R. Civ. P. 21.
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 Clerk of Court is also instructed to issue summonses for Capra, Sanchez, Beadle, Green, Ross, Ortiz, Manuel, and Venettozzi, 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. The Court dismisses Plaintiff’s claims against the State of New York and Commissioner Annucci. See 28 U.S.C. § 1915(e)(2)(B)(i1)-(ai1). The Clerk of Court is further instructed to mail Plaintiff a mailing package, and to mail a copy of this Order to pro se Plaintiff and show service on the docket. 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). SO ORDERED. Dated: March 28, 2023 White Plains, New York NELSON S.ROMAN United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
Superintendent Michael Capra 354 Hunter Street Ossining, NY 10562-5442 Sergeant Sanchez 354 Hunter Street Ossining, NY 10562-5442 Officer Beadle 354 Hunter Street Ossining, NY 10562-5442 Officer Green 354 Hunter Street Ossining, NY 10562-5442 Officer Ross 354 Hunter Street Ossining, NY 10562-5442 Officer Ortiz 354 Hunter Street Ossining, NY 10562-5442 Officer Manuel 354 Hunter Street Ossining, NY 10562-5442 Officer Venettozzi 354 Hunter Street Ossining, NY 10562-5442 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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