Genao v. City of New York

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK USDC SDNY DOCUMENT GABINO GENAO, ELECTRONICALLY FILED DOC #: Plaintiff, DATE FILED:_ 2/8/2021 -against- CITY OF NEW YORK; THE NYC DEPT. OF CORRECTION; DOC COMMISSIONER; OSIU DEPT. SANCHEZ; OSIU DEPT. GUIDY; OSIU DEPT. WARDEN SMALLS; MDC CIB MICHAEL EVERSON; MDC SECURITY CAPT. HERNANDEZ; 20-CV-4872 (MKV) SUFFOLK COUNTY HEARING OFFICER YASCONE, BADGE # 1276; IG OFFICER SUFFOLK ORDER OF SERVICE COUNTY ANTHONY GERMANO, BADGE # 1057, ALSO KNOWN AS MR. G.; IG OFFICER SUFFOLK COUNTY BERTOLLI, ALSO KNOWN AS MR. B.; LT. JANE DOE, SUFFOLK COUNTY; OSIU CHIEF STOKES; WARDEN SHERMA DUNBAR; DOC BUREAU CHIEF; CYNTHIA BRANN, COMMISSIONER OF DOC; PEGGY JOSEPH, OSIU DEPT.; SCOC, Defendants. MARY KAY VYSKOCIL, United States District Judge: Plaintiff, currently incarcerated in the Manhattan Detention Center (MDC), brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights while he was detained in MDC and then Defendants retaliated against Plaintiff and transferred him to the Suffolk County Jail. Plaintiff alleges that his rights were violated while he was detained in the Suffolk County Jail, and upon his return to MDC, Defendants again violated his rights. By order dated July 9, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).!

' 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).

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. See28 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 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). 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). But the “special solicitude”in pro se cases,id. at 475 (citation omitted), has its limits – to state a claim,pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible –not merely possible –that the pleader is entitled to relief.Id. DISCUSSION A. Eleventh Amendment Plaintiff’s claims against the New York State Commission of Correction (SCOC) must be

dismissed. “[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’s § 1983 claims against the SCOC are therefore barred by the EleventhAmendment and are dismissed. B. NYC Dept. of Correction (DOC)

Plaintiff’s claims against the DOC must also be dismissed because an agency of the City of New York is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F. Supp. 2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”). C. Waiver of Service The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that the City of New York; OSIU Dept. Sanchez; OSIU Dept. Guidy; OSIU Dept. Warden Smalls; MDC CIB Michael Everson; MDC Security Capt. Hernandez,OSIU Chief Stokes; Warden Sherma Dunbar; DOC

Bureau Chief; Cynthia Brann, Commissioner of DOC; and Peggy Joseph, OSIU Dept.,waive service of summons. D. Service on Suffolk County Hearing Officer Yascone, Badge # 1276; IG Officer Suffolk County Anthony Germano, Badge # 1057, also known as Mr. G.; IG Officer Suffolk County Bertolli, also known as Mr. B. Because Plaintiff has been granted permission to proceed IFP, Plaintiffis entitled to rely on the Court and the U.S. Marshals Service to effect service. 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)).Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summonses and 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 the summonsesare issued. If the complaint is not served within that time, 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); see also Murray v. Pataki,378 F. App’x 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals’ failure to effect service automatically constitutes ‘good cause’ for an extension of time within the meaning of Rule 4(m).”). To allow Plaintiff to effect service on DefendantsSuffolk County Hearing Officer Yascone, Badge # 1276; IG Officer Suffolk County Anthony Germano, Badge # 1057, also known as Mr. G.; IG Officer Suffolk County Bertolli, also known as Mr. B.,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 each of 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. E. Jane Doe Defendant 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 Suffolk County Sheriff’s Office to identify Lt. Jane Doe, Suffolk County.It is therefore ordered that the Suffolk County Attorney,whois the attorney for and agent of the Suffolk County Sheriff’s Office,must ascertain the identity and badge number

of Lt. Jane Doe, Suffolk County,whom Plaintiff seeks to sue here and the address where she may be served.The Suffolk County Attorneymust provide this information to Plaintiff and the Court within sixty days of the date of this order. Within thirty days of receiving this information, Plaintiff must file asecondamended complaint naming the Jane Doe Defendant.The second amended complaint will replace, not supplement, the original complaint.Asecondamended complaint form that Plaintiff should complete is attached to this order.Once Plaintiff has filed a secondamended complaint, the Court willscreen the second amended complaint and, if necessary,issue an order directing the Clerk of Court to complete the USM-285 form with the address for the named Jane Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service. Plaintiff must notify the Court in writing if Plaintiff’s address changes, and the Court may dismiss the action if Plaintiff fails to do so. F. 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 these standard discovery requests. In their responses, Defendants must quote each request verbatim.2 CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. The Court dismisses Plaintiff’s claims against SCOC and the NYC Dept. of Correction. See 28 U.S.C. § 1915(e)(2)(B)(ii), (iii).

The Clerk of Court is directed to electronically notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Defendants the City of New York; OSIU Dept. Sanchez; OSIU Dept. Guidy; OSIU Dept. Warden Smalls; MDC CIB Michael Everson; MDC Security Capt. Hernandez,OSIU Chief

2 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. Stokes; Warden Sherma Dunbar; DOC Bureau Chief; Cynthia Brann, Commissioner of DOC; and Peggy Joseph, OSIU Dept., waive service of summons. The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Suffolk County Hearing Officer Yascone, Badge # 1276; IG Officer Suffolk County Anthony Germano, Badge # 1057, also known as Mr. G.; IG Officer Suffolk County Bertolli, also known as Mr. B., and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is directed to mail a copy of this order and the complaint to the Suffolk County Attorney at: 100 Veterans Memorial Highway, Hauppauge, New York 11788. A Second Amended Complaint form is attached to this order. 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: February 8, 2021 New York, New York Mey : (] pAY fad Unseed Statds/District Judge

DEFENDANTS AND SERVICE ADDRESSES

Suffolk County Hearing Officer Yascone, Badge # 1276 c/o Riverhead Correctional Facility 100 Center Drive South Riverhead, New York 11901 IG Officer Suffolk County Anthony Germano, Badge # 1057, also known as Mr. G. c/o Riverhead Correctional Facility 100 Center Drive South Riverhead, New York 11901 IG Officer Suffolk County Bertolli, also known as Mr. B. c/o Riverhead Correctional Facility 100 Center Drive South Riverhead, New York 11901 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? 0mNd—MN L1Yes LINo

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.

Rev. 5/20/16

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 ina “Bivens” action (against federal defendants). L] Violation of my federal constitutional rights L] Other: Il. 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 II. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: L] Pretrial detainee L] Civilly committed detainee L] Immigration detainee L] Convicted and sentenced prisoner L] 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: