Deans v. Cimorelli

• Court: District Court, S.D. New York
• Decided: April 21, 2022
• Docket: 7:18-cv-02576
• Status: Unknown

Opinion

USDC SDNY UNITED STATES DISTRICT COURT ere mTRONIC ALLY FILED SOUTHERN DISTRICT OF NEW YORK OG □□ DATE FILED: _ 4/21/2022 TASHAY DAVID DEANS, ————————————

Plaintitt 18-CV-02576 (NSR) -against- ORDER SGT. CIMORELLLF, et al, Defendants.

NELSON S. ROMAN, United States District Judge: Plaintiff Tashay David Deans (‘Plaintiff’) filed suit on March 22, 2018 against the Orange County Jail Medical Unit and several medical professionals after he experienced an asthma attack and styes in his eyes while incarcerated. (ECF No. 2.) On June 22, 2018, the case was reassigned to this Court. On June 25, 2018, the Court issued an Order of Service directing the Orange County Law Department identify the nurses and doctors who treated Plaintiff as discussed in the Complaint and directing Plaintiff to file an amended complaint. (ECF No. 7.) On August 23, 2018, arepresentative from the Orange County Law Department filed a letter identifying the nurses and doctors pursuant to the Court’s Order. (ECF No. 9.) On October 22, 2018, Plaintiff filed an Amended Complaint. (ECF No. 12.) Plaintiff has now filed requests to have the US. Marshals Service effect service, a Valentin Order, and a proposed order to show cause. (ECF Nos. 25, 26 & 27.) DISCUSSION I. OCJ Medical Unit Plaintiffs claims against the Orange County Jail Medical Unit must be dismissed because city agencies or departments do not have the capacity to be sued under New York law. See

Omnipoint Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) (“In New York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the

municipality and cannot sue or be sued.”); see also N.Y. Gen. Mun. Law § 2 (“The term ‘municipal corporation,’ as used in this chapter, includes only a county, town, city and village.”). Instead, Plaintiff may file claims against Orange County pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Therefore, the Court will grant Plaintiff leave to file a second amended complaint that includes a Monell claim against Orange County. The second amended complaint will replace, not supplement, the original complaint. An amended complaint form is also attached to this Order. Once Plaintiff has filed the second amended complaint, the Court will, if necessary, issue an order directing the Clerk of Court to issue a summons as to each named defendant. II. U.S. Marshals Service Plaintiff is requesting the Court direct the U.S. Marshals Service effect service. However,

Plaintiff has not been granted in forma pauperis status. 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)). Therefore, the Court directs Plaintiff to submit the application attached to this Order to apply for in forma pauperis status. Plaintiff’s request is denied without prejudice to renew upon the Court’s receipt and approval of Plaintiff’s in forma pauperis application. III. Valentin Order Plaintiff is requesting a Valentin Order directing Orange County identify seven persons and entities. However, under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). None of the listed persons or entities are defendants, and therefore Plaintiff's request is denied. IV. Order to Show Cause Lastly, Plaintiff filed a proposed order to show cause. (ECF No. 27.) Construed liberally, this appears to be a response to the Court’s Orders to Show cause directing the Plaintiff to respond in writing why his claims against Defendants should not be dismissed with prejudice for want of prosecution pursuant to Fed R. Civ. P. 41(b). (ECF Nos. 16 & 19.) The Court’s Orders to Show Cause are deemed withdrawn. CONCLUSION Plaintiff is directed to submit a completed in forma pauperis application and is granted leave to file a second amended complaint pursuant to this Order by June 21, 2022. Plaintiff's requests for the U.S. Marshals to effect service (ECF No. 25) and for a Valentin Order (ECF No. 26) are denied without prejudice, and the Court’s previous Orders to Show Cause (ECF Nos. 16 & 19) are withdrawn. The Clerk of Court is directed to dismiss Orange County Jail Medical Unit as a defendant, mail a copy of this Order to the pro se plaintiff, and show service on the docket. Dated: April 21, 2022 SO ORDERED: White Plains, New York

-NELSONS.ROMAN United States District Judge

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

(full name of the plaintiff or petitioner applying (each person must submit a separate application)) CV ( ) ( ) -against- (Provide docket number, if available; if filing this with your complaint, you will not yet have a docket number.)

(full name(s) of the defendant(s)/respondent(s)) APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS I am a plaintiff/petitioner in this case and declare that I am unable to pay the costs of these proceedings and I believe that I am entitled to the relief requested in this action. In support of this application to proceed in forma pauperis (IFP) (without prepaying fees or costs), I declare that the responses below are true:

1. Are you incarcerated? Yes No (If “No,” go to Question 2.) I am being held at:

Do you receive any payment from this institution? Yes No Monthly amount: If I am a prisoner, see 28 U.S.C. § 1915(h), I have attached to this document a “Prisoner Authorization” directing the facility where I am incarcerated to deduct the filing fee from my account in installments and to send to the Court certified copies of my account statements for the past six months. See 28 U.S.C. § 1915(a)(2), (b). I understand that this means that I will be required to pay the full filing fee.

2. Are you presently employed? Yes No If “yes,” my employer’s name and address are:

Gross monthly pay or wages:

If “no,” what was your last date of employment?

Gross monthly wages at the time:

3. In addition to your income stated above (which you should not repeat here), have you or anyone else living at the same residence as you received more than $200 in the past 12 months from any of the following sources? Check all that apply.

(a) Business, profession, or other self-employment Yes No (b) Rent payments, interest, or dividends Yes No (c) Pension, annuity, or life insurance payments Yes No (d) Disability or worker’s compensation payments Yes No (e) Gifts or inheritances Yes No (f) Any other public benefits (unemployment, social security, Yes No food stamps, veteran’s, etc.) (g) Any other sources Yes No

If you answered “Yes” to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.

If you answered “No” to all of the questions above, explain how you are paying your expenses:

4. How much money do you have in cash or in a checking, savings, or inmate account?

5. Do you own any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value, including any item of value held in someone else’s name? If so, describe the property and its approximate value:

6. Do you have any housing, transportation, utilities, or loan payments, or other regular monthly expenses? If so, describe and provide the amount of the monthly expense:

7. List all people who are dependent on you for support, your relationship with each person, and how much you contribute to their support (only provide initials for minors under 18):

8. Do you have any debts or financial obligations not described above? If so, describe the amounts owed and to whom they are payable:

Declaration: I declare under penalty of perjury that the above information is true. I understand that a false statement may result in a dismissal of my claims.

Dated Signature

Name (Last, First, MI) Prison Identification # (if incarcerated)

Address City State Zip Code

Telephone Number E-mail Address (if available) 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)

SECOND 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 #

County, City State Zip Code Defendant 3: First Name Last Name Shield #

County, City State Zip Code Defendant 4: First Name Last Name Shield #

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

Prison Address

County, City State Zip Code

Date on which I am delivering this complaint to prison authorities for mailing: