Griffith v. Harvey

• Court: District Court, S.D. New York
• Decided: May 14, 2024
• Docket: 1:24-cv-02714
• Status: Unknown

Opinion

ELECTRONICALLY FILED DOC#; □□ □□□ UNITED STATES DISTRICT COURT DATE FILED; _3/14/2024 □ SOUTHERN DISTRICT OF NEW YORK MR. BRANDON L. GRIFFITH, Plaintiff, -against- 24-CV-2714 (ALC) WARDEN MRS. HARVEY; CAPTAIN PAYNE; ORDER OF SERVICE CO DEJESUS; CO TREMARZO; WARDEN DAVIS; G.R.V.C., Defendants. ANDREW L. CARTER, JR., United States District Judge: Plaintiff Brandon L. Griffith, who is currently detained at the Otis Bantum Correctional Center on Rikers Island, brings this action under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights when he was detained at the Eric M. Taylor Center (“EMTC”) and George R. Vierno Center (“GRVC”) on Rikers Island. By order dated May 1, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. ! 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

' 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).

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. Claims against GRVC Plaintiff names as a defendant the George R. Vierno Center, which is a facility on Rikers

Island. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988). Because GRVC is a building facility, it is not a person acting under color of law for purposes of Section 1983. The Court therefore dismisses Plaintiff’s claims against GRVC for failure to state a claim on which relief may be granted. See 28 U.S.C. §1915(e)(2)(B)(ii). In light of Plaintiff’s pro se status and likely intention to assert claims against the City of New York,2 the Court construes the complaint as asserting claims against the City of New York,

and directs the Clerk of Court to amend the caption of this action to replace GRVC with the City of New York. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses the City of New York may wish to assert.

2 GRVC is operated by the New York City Department of Correction (“DOC”). However, as an agency of the City of New York, DOC is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“[A]ll 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.”). B. Waiver of Service 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 the City of New York; EMTC Warden Harvey; EMTC Captain Payne; GRVC Correction Officer Dejesus; GRVC Correction Officer Tremarzo, Shield #1488; and GRVC Warden Davis waive

service of summons. 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. 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 the date of this order, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.3

CONCLUSION The Court dismisses Plaintiff’s claims against GRVC for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is directed to add the City of New York as a Defendant under Fed. R. Civ. P. 21. The Clerk of Court is further directed to electronically notify the New York City Department of Correction and the New York City Law Department of this order. The Court

3 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. requests that the City of New York; EMTC Warden Harvey; EMTC Captain Payne; GRVC Correction Officer Dejesus; GRVC Correction Officer Tremarzo, Shield #1488; and GRVC Warden Davis waive service of summons. The Clerk of Court is also directed to mail an information package to Plaintiff. 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 14, 2024 [Ards □ (hee New York, New York ~~ ANDREWL. CARTER, □□□ United States District Judge