UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOHN ANDREW FLORES, Plaintiff, 24-CV-2969 (RA) THE STATE OF NEW YORK, et al., ORDER OF SERVICE Defendants. RONNIE ABRAMS, United States District Judge: Plaintiff, who currently is detained at the Metropolitan Detention Center in Brooklyn, New York, brings this pro se action, under 42 U.S.C. § 1983, alleging that a parole officer assaulted him. By order dated April 25, 2024, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 As set forth in this order, the Court
dismisses Plaintiff’s claims against the State of New York and the New York State Department of Corrections and Community Supervision (“DOCCS”); orders service on Defendant Officer S. Montigny; and directs the New York State Attorney General to fully identify Officer John Doe. 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
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). v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). DISCUSSION A. The State of New York and DOCCS “[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 Section 1983. See Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990); Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Plaintiff names as Defendants the State of New York and DOCCS, which is an arm of the State of New York. Plaintiff’s Section 1983 claims against the State of New York and DOCCS are therefore barred by the Eleventh Amendment and are dismissed. See 28 U.S.C.
§ 1915(e)(2)(B)(iii); Fed. R. Civ. P. 12(h)(3). B. Service on Officer S. Montigny Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the assistance of 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
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 complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date a summons is issued. 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 Officer Montigny 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 this Defendant. 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 on the Defendant. If the complaint is not served within 90 days after the date a summons is 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. Valentin Order 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). In the complaint, Plaintiff supplies sufficient information to permit the DOCCS to fully identify Officer John Doe who allegedly failed to intervene when Officer Montigny assaulted Plaintiff on September 9, 2022. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of the DOCCS, must ascertain the identities and badge numbers of the John Doe defendant and the address where this defendant may be served. The Attorney General 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 with the full name of Officer John Doe. 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 directing the Clerk of Court to complete the USM-285 forms with the address for the newly named defendant and deliver all documents necessary to effect service to the U.S. Marshals Service.
D. 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 service of the complaint, Defendants must serve responses to those standard discovery requests.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOHN ANDREW FLORES, Plaintiff, 24-CV-2969 (RA) THE STATE OF NEW YORK, et al., ORDER OF SERVICE Defendants. RONNIE ABRAMS, United States District Judge: Plaintiff, who currently is detained at the Metropolitan Detention Center in Brooklyn, New York, brings this pro se action, under 42 U.S.C. § 1983, alleging that a parole officer assaulted him. By order dated April 25, 2024, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 As set forth in this order, the Court
dismisses Plaintiff’s claims against the State of New York and the New York State Department of Corrections and Community Supervision (“DOCCS”); orders service on Defendant Officer S. Montigny; and directs the New York State Attorney General to fully identify Officer John Doe. 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
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). v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). DISCUSSION A. The State of New York and DOCCS “[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 Section 1983. See Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990); Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Plaintiff names as Defendants the State of New York and DOCCS, which is an arm of the State of New York. Plaintiff’s Section 1983 claims against the State of New York and DOCCS are therefore barred by the Eleventh Amendment and are dismissed. See 28 U.S.C.
§ 1915(e)(2)(B)(iii); Fed. R. Civ. P. 12(h)(3). B. Service on Officer S. Montigny Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the assistance of 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
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 complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date a summons is issued. 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 Officer Montigny 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 this Defendant. 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 on the Defendant. If the complaint is not served within 90 days after the date a summons is 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. Valentin Order 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). In the complaint, Plaintiff supplies sufficient information to permit the DOCCS to fully identify Officer John Doe who allegedly failed to intervene when Officer Montigny assaulted Plaintiff on September 9, 2022. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of the DOCCS, must ascertain the identities and badge numbers of the John Doe defendant and the address where this defendant may be served. The Attorney General 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 with the full name of Officer John Doe. 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 directing the Clerk of Court to complete the USM-285 forms with the address for the newly named defendant and deliver all documents necessary to effect service to the U.S. Marshals Service.
D. 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 service of the complaint, Defendants must serve responses to those standard discovery requests. In their responses, Defendants must quote each request verbatim.3 CONCLUSION The Court dismisses Plaintiff’s claims against the State of New York and the New York State Department of Corrections and Community Supervision as barred by the Eleventh Amendment. 28 U.S.C. § 1915(e)(2)(B)(iii); Fed. R. Civ. P. 12(h)(3).
The Clerk of Court is directed to issues summonses for Defendant Montigny, complete an USM-285 form with the address for this Defendant, and deliver all documents necessary to effect service on the Defendant to the U.S. Marshals Service.
3 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. The Clerk of Court is also directed to mail a copy of this order and the complaint to the New York State Attorney General at: New York State Attorney General’s Managing Attorney’s Office, 28 Liberty Street, 16th Floor, New York, NY 10005. The Clerk of Court is further directed to mail Plaintiff an information package. Local Civil Rule 33.2 applies to this action. 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: May 1, 2024 i] / New York, New York A ( Oy RONNIE ABRAMS United States District Judge
DEFENDANT AND SERVICE ADDRESS Officer S. Montigny Office of Special Investigations New York State Department of Corrections and Community Supervision Harriman State Office Campus 1220 Washington Avenue