UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK QUANDELL HICKMAN, Plaintiff, -against- 24-CV-2082 (RA) C.O. ENDEAVERS, 12537; C.O. GRANT, 17624; ORDER OF SERVICE C.O. D.W. JOHNSON, 1474; DR. NOWLIN; CPT. FIRSOV, 1727, Defendants. RONNIE ABRAMS, United States District Judge: Plaintiff, who currently is detained at the Otis Bantum Correctional Center on Rikers Island, brings this action, pro se, under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. By order dated April 19, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 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,”
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). 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 Captain Firsov Plaintiff asserts claims against Defendant Captain Firsov under 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must allege facts showing the defendants’ direct and
personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep’ t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” (internal quotation marks omitted)). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the
official[.]” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020). Here, Plaintiff’s only allegations against Firsov are that after Plaintiff complained to Firsov about Endeavers’s actions, Firsov directed Endeavers to provide Plaintiff with his badge number, and that Firsov told Endeavers to write an injury report with respect to Plaintiff. (ECF 1, at 5.) Plaintiff does not allege any facts suggesting that Firsov was personally involved in any alleged violation of his constitutional rights. The Court therefore dismisses Plaintiff’s claims against Firsov 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, the Court grants him 30 days’ leave to replead his claims against Firsov in an amended complaint that alleges facts suggesting that Firsov was directly involved in violating Plaintiff’s constitutional rights. Because any amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff
wants to include from the original complaint must be repeated in the amended complaint. B. 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 Correction Officers Endeavers (Shield # 12537), Grant (Shield # 17624), and D.W. Johnson (Shield # 1474) waive service of summons. C. Service on Nowlin The Court understands “Dr. Nowlin” to be a referring to Physician’s Assistant Louis Nowlin, who is an employee of the Physician Affiliate Group of New York, P.C. 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 on this defendant.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 PA Louis Nowlin through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and
2Although 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 effected service until the Court reviewed the complaint and ordered that any summonses be issued. The Court therefore extends the time to serve until 90 days after the date any summonses issue. 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 upon Defendant. If the complaint is not served within 90 days after the date the 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. CONCLUSION The Court dismisses Plaintiff’s claims against Captain Firsov for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii), with 30 days’ leave to replead. An amended complaint form is attached to this order. The Clerk of Court is directed to notify the New York City Department of Correction and
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK QUANDELL HICKMAN, Plaintiff, -against- 24-CV-2082 (RA) C.O. ENDEAVERS, 12537; C.O. GRANT, 17624; ORDER OF SERVICE C.O. D.W. JOHNSON, 1474; DR. NOWLIN; CPT. FIRSOV, 1727, Defendants. RONNIE ABRAMS, United States District Judge: Plaintiff, who currently is detained at the Otis Bantum Correctional Center on Rikers Island, brings this action, pro se, under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. By order dated April 19, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 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,”
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). 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 Captain Firsov Plaintiff asserts claims against Defendant Captain Firsov under 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must allege facts showing the defendants’ direct and
personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep’ t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” (internal quotation marks omitted)). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the
official[.]” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020). Here, Plaintiff’s only allegations against Firsov are that after Plaintiff complained to Firsov about Endeavers’s actions, Firsov directed Endeavers to provide Plaintiff with his badge number, and that Firsov told Endeavers to write an injury report with respect to Plaintiff. (ECF 1, at 5.) Plaintiff does not allege any facts suggesting that Firsov was personally involved in any alleged violation of his constitutional rights. The Court therefore dismisses Plaintiff’s claims against Firsov 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, the Court grants him 30 days’ leave to replead his claims against Firsov in an amended complaint that alleges facts suggesting that Firsov was directly involved in violating Plaintiff’s constitutional rights. Because any amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff
wants to include from the original complaint must be repeated in the amended complaint. B. 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 Correction Officers Endeavers (Shield # 12537), Grant (Shield # 17624), and D.W. Johnson (Shield # 1474) waive service of summons. C. Service on Nowlin The Court understands “Dr. Nowlin” to be a referring to Physician’s Assistant Louis Nowlin, who is an employee of the Physician Affiliate Group of New York, P.C. 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 on this defendant.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 PA Louis Nowlin through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and
2Although 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 effected service until the Court reviewed the complaint and ordered that any summonses be issued. The Court therefore extends the time to serve until 90 days after the date any summonses issue. 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 upon Defendant. If the complaint is not served within 90 days after the date the 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. CONCLUSION The Court dismisses Plaintiff’s claims against Captain Firsov for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii), with 30 days’ leave to replead. An amended complaint form is attached to this order. 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 Correction Officers Endeavers (Shield # 12537), Grant (Shield # 17624), and D.W. Johnson (Shield # 1474) waive service of summons. The Clerk of Court is further directed to issue a summons for PA Louis Nowlin, to complete the USM-285 form 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 also directed to mail an information package to Plaintiff. 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 lip y New York, New York Ke (_ ZL RONNIE ABRAMS United States District Judge
DEFENDANT AND SERVICE ADDRESS
Louis Nowlin, PA c/o Gwendolyn Renee Tarver PAGNY – Correctional Health Services 49-04 19th Avenue, 1st Floor Astoria, NY 11105