UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MICHAEL CRANE, Plaintiff, ORDER OF SERVICE -against-
23-CV-1413 (PMH) DOCTOR PARKER; LT. JOHN DOE; CAPTAIN NIXON; JOHN DOE #3, Defendants. PHILIP M. HALPERN, 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 violated his federal constitutional rights. By order dated March 7, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 On May 4, 2023, Chief Judge Laura Taylor Swain directed Plaintiff to file an amended complaint. (Doc. 7). The Court received Plaintiff’s amended complaint on August 3, 2023. (Doc. 10, “Am. Compl.”). On August 21, 2023, this action was reassigned to the undersigned. For the reasons set forth below, the Court: (1) dismisses Plaintiff’s claims against Captain Nixon, Captain Doe, and Lieutenant Doe; (2) directs service on Doctor Parker; and (3) refers Plaintiff to the NYLAG Clinic. STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon
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). 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 if the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
DISCUSSION A. Claims against Captain Nixon, Captain Doe, and Lieutenant Doe Plaintiff brings Section 1983 claims against Captain Nixon, Captain Doe, and Lieutenant Doe, alleging that they violated his right under the Fourteenth Amendment to procedural due process during a disciplinary hearing. The Court must determine, for purposes of this claim, “(1) whether a [liberty or] property interest is implicated, and if it is, (2) what process is due before the plaintiff may be deprived of that interest.” Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011) (citation omitted). For an individual who has been convicted, and already deprived of his liberty, his “liberty interest is implicated by prison discipline . . . only if the discipline ‘imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (quoting Sandin v. Conner, 515 U.S. 472, 484
(1995)). “[R]estrictive confinements of less than 101 days do not generally raise a liberty interest warranting due process protection, and thus require proof of conditions more onerous than usual.” Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009); Kalwasinski v. Morse, 201 F.3d 103,107-08 (2d Cir. 1999) (discussing factors relevant to deciding if confinement in segregated housing constitutes an atypical hardship). Plaintiff, in his amended complaint, does not allege facts suggesting that he was denied a protected liberty interest. Plaintiff alleges that as a result of being found guilty of a disciplinary infraction, he lost food packages, commissary, recreation, and phone calls for a period of two weeks. (Am. Compl. at 3, 4). He does not allege that he was subject to restrictive confinement, let alone that he was subject to such conditions for more than 101 days. Plaintiff’s loss of food packages, commissary, recreation, and phone calls for two weeks does not amount to an “atypical and significant hardship on the inmate in relation to ordinary incidents of prison life.” Sandin, 515 U.S. at 484; see Alvarado v. Kerrigan, 152 F. Supp. 2d 350, 355 (S.D.N.Y. Mar. 30, 2001) (holding
that loss of packages, commissary and phone privileges, among other conditions, for a 93-day period is not an atypical or significant hardship); Davis v. State of New York, No. 99-CV-0307H, 1999 WL 1390247, at *3-4 (W.D.N.Y. Dec. 14, 1999) (thirty days in keeplock with loss of telephone, commissary, and package privileges is not an atypical or significant hardship). Because Plaintiff does not allege that he was deprived of a protected liberty interest, the Court dismisses his Section 1983 claims against Captain Nixon, Captain Doe, and Lieutenant Doe for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and
only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Having dismissed the federal claims against Captain Nixon, Captain Doe, and Lieutenant Doe of which the Court has original jurisdiction, the Court declines to exercise its supplemental jurisdiction of any state law claims Plaintiff may be asserting against these defendants. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.’” (quoting City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997))). B. Service on Doctor Parker 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 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 Defendant Doctor Parker through the U.S.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MICHAEL CRANE, Plaintiff, ORDER OF SERVICE -against-
23-CV-1413 (PMH) DOCTOR PARKER; LT. JOHN DOE; CAPTAIN NIXON; JOHN DOE #3, Defendants. PHILIP M. HALPERN, 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 violated his federal constitutional rights. By order dated March 7, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 On May 4, 2023, Chief Judge Laura Taylor Swain directed Plaintiff to file an amended complaint. (Doc. 7). The Court received Plaintiff’s amended complaint on August 3, 2023. (Doc. 10, “Am. Compl.”). On August 21, 2023, this action was reassigned to the undersigned. For the reasons set forth below, the Court: (1) dismisses Plaintiff’s claims against Captain Nixon, Captain Doe, and Lieutenant Doe; (2) directs service on Doctor Parker; and (3) refers Plaintiff to the NYLAG Clinic. STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon
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). 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 if the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
DISCUSSION A. Claims against Captain Nixon, Captain Doe, and Lieutenant Doe Plaintiff brings Section 1983 claims against Captain Nixon, Captain Doe, and Lieutenant Doe, alleging that they violated his right under the Fourteenth Amendment to procedural due process during a disciplinary hearing. The Court must determine, for purposes of this claim, “(1) whether a [liberty or] property interest is implicated, and if it is, (2) what process is due before the plaintiff may be deprived of that interest.” Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011) (citation omitted). For an individual who has been convicted, and already deprived of his liberty, his “liberty interest is implicated by prison discipline . . . only if the discipline ‘imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (quoting Sandin v. Conner, 515 U.S. 472, 484
(1995)). “[R]estrictive confinements of less than 101 days do not generally raise a liberty interest warranting due process protection, and thus require proof of conditions more onerous than usual.” Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009); Kalwasinski v. Morse, 201 F.3d 103,107-08 (2d Cir. 1999) (discussing factors relevant to deciding if confinement in segregated housing constitutes an atypical hardship). Plaintiff, in his amended complaint, does not allege facts suggesting that he was denied a protected liberty interest. Plaintiff alleges that as a result of being found guilty of a disciplinary infraction, he lost food packages, commissary, recreation, and phone calls for a period of two weeks. (Am. Compl. at 3, 4). He does not allege that he was subject to restrictive confinement, let alone that he was subject to such conditions for more than 101 days. Plaintiff’s loss of food packages, commissary, recreation, and phone calls for two weeks does not amount to an “atypical and significant hardship on the inmate in relation to ordinary incidents of prison life.” Sandin, 515 U.S. at 484; see Alvarado v. Kerrigan, 152 F. Supp. 2d 350, 355 (S.D.N.Y. Mar. 30, 2001) (holding
that loss of packages, commissary and phone privileges, among other conditions, for a 93-day period is not an atypical or significant hardship); Davis v. State of New York, No. 99-CV-0307H, 1999 WL 1390247, at *3-4 (W.D.N.Y. Dec. 14, 1999) (thirty days in keeplock with loss of telephone, commissary, and package privileges is not an atypical or significant hardship). Because Plaintiff does not allege that he was deprived of a protected liberty interest, the Court dismisses his Section 1983 claims against Captain Nixon, Captain Doe, and Lieutenant Doe for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and
only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Having dismissed the federal claims against Captain Nixon, Captain Doe, and Lieutenant Doe of which the Court has original jurisdiction, the Court declines to exercise its supplemental jurisdiction of any state law claims Plaintiff may be asserting against these defendants. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.’” (quoting City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997))). B. Service on Doctor Parker 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 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 Defendant Doctor Parker 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 Defendant Parker. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon this Defendant. If the complaint is not served within 90 days after the date the summonses are issued, Plaintiff must 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. NYLAG 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
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 the summons and the complaint until the Court reviewed the complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. 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 Section 1983 claims against Captain Nixon, Captain Doe, and Lieutenant John Doe for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). The Court declines to exercise supplemental jurisdiction of any state law claims Plaintiff may be asserting against Captain Nixon, Captain Doe, and Lieutenant John Doe. See 28 U.S.C. § 1367(c)(3). The Clerk of Court is directed to issue a summons for Doctor Parker, complete the USM-
285 forms with the address for this defendant, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further directed to send an information package to Plaintiff. Copies of the 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). SO ORDERED. Dated: White Plains, New York August 22, 2023 ( | PHILIP M. HALPERN United States District Judge
DEFENDANT AND SERVICE ADDRESS
Dr. Parker Sing Sing Correctional Facility 354 Hunter Street Ossining, NY 10562 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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