Hicks v. Chavez

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DARNELL HICKS, Plaintiff, 7:23-CV-8088 (KMK) -v.- ORDER OF SERVICE DET. CHAVEZ; JOHN DOE; JOHN DOE, Defendants. KENNETH M. KARAS, United States District Judge: Plaintiff Darnell Hicks, of Peekskill, New York, who appears pro se, brings this Action invoking the Court’s federal question jurisdiction. He seeks unspecified relief and sues: (1) Detective Chavez, of the Ossining Police Department (“OPD”); and (2) unidentified “John Doe” defendants. The Court construes Plaintiff’s Complaint as asserting a claim of a Fourth Amendment violation arising from Plaintiff’s arrest while he was in a state of undress, and a claim of excessive force arising from his being handcuffed too tightly, under 42 U.S.C. § 1983, as well as related claims under state law. By order dated September 13, 2023, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. The Court directs service on Detective Chavez. The Court also grants Plaintiff leave to file an amended complaint to name as defendants, if he knows, any other members of the OPD who participated in his arrest, and to allege facts showing those individuals’ direct and personal involvement in the alleged violations of his constitutional rights. DISCUSSION A. Service on Detective Chavez 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.1 Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also § 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 Detective Chavez 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 that Defendant. The Clerk of Court is further instructed to issue a summons for Detective Chavez, and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon that Defendant. If the Complaint is not served on Detective Chavez within 90 days after the date the summons is issued for that Defendant, 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.

1 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 a summons and the Complaint on Detective Chavez until the Court reviewed the Complaint and ordered that a summons be issued for that defendant. The Court therefore extends the time to serve Detective Chavez until 90 days after the date that a summons is issued for that defendant. B. The unidentified “John Doe” defendants The Court understands that, by naming unidentified “John Doe” individuals as defendants, Plaintiff is attempting to assert claims under 42 U.S.C. § 1983 against additional members of the OPD who were allegedly involved with his arrest. To state a claim under Section 1983 against such individuals, a plaintiff must allege facts showing that those individuals

were directly and personally involved in an 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).

Plaintiff names unidentified “John Doe” Defendants, but alleges no facts describing those Defendants (that is, whether they are members of the OPD), and whether they were directly and personally involved in the alleged violations of his federal constitutional rights. In light of Plaintiff’s pro se status, the Court grants Plaintiff leave to file an amended complaint in which he names as defendants individual members of the OPD, other than Detective Chavez, who were allegedly involved with his arrest—if possible, by name and badge number—and in which he alleges facts showing those defendants’ direct and personal involvement in the alleged violations of his constitutional rights.2 C. Leave to amend Plaintiff is granted leave to amend his Complaint to provide more facts about his claims as to the unidentified “John Doe” Defendants. Plaintiff must name as the defendant(s) in the caption3 and in the statement of claim those individuals who were allegedly directly and

personally involved in the deprivation of his federal rights. If Plaintiff does not know the name of a defendant, he may refer to that individual as “John Doe” or “Jane Doe” in both the caption and the body of the amended complaint.4 The naming of “John Doe” or “Jane Doe” defendants, however, does not toll the statute of limitations period governing Plaintiff’s claims under Section 1983, and Plaintiff shall be responsible for ascertaining the true identity of any “John Doe” or “Jane Doe” defendants and amending his Complaint to include the identity of any “John Doe” or “Jane Doe” defendants before the applicable statute of limitations period expires. Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure.

2 If Plaintiff does not know the names or badge numbers of those defendants, he should follow the instructions as to how to name unidentified “John Doe” or “Jane Doe” defendants that can be found in the “Leave to amend” section of this Order. 3 The caption is located on the front page of the complaint. Each individual defendant must be named in the caption. Plaintiff may attach additional pages if there is not enough space to list all of the defendants in the caption. If Plaintiff needs to attach an additional page to list all defendants, he should write “see attached list” on the first page of the amended complaint. Any defendants named in the caption must also be discussed in Plaintiff’s statement of claim. 4 For example, a defendant may be identified as: “Correction Officer John Doe #1 on duty on August 31, 2023, at the Sullivan Correctional Facility clinic, during the 7 a.m. to 3 p.m. shift.” In the “Statement of Claim” section of the amended complaint, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, he must provide it. Plaintiff should include all of the information in the amended complaint that he wants the Court to consider in deciding

whether the amended complaint states a claim for relief. That information should include: the names and titles of all relevant people; a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred; a description of the injuries Plaintiff suffered; and the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief. Essentially, Plaintiff’s amended complaint should tell the Court: who violated his federally protected rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief. Because Plaintiff’s 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. D. New York Legal Assistance Group Plaintiff may consider contacting the New York Legal Assistance Group’s (“NYLAG”) Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this Court. The clinic is operated by a private organization; it is not part of, or operated by, the Court. It cannot accept filings on behalf of the Court, which must still be made by any pro se party through the court’s Pro Se Intake Unit. A copy of the flyer with details of the NYLAG clinic is attached to this Order. CONCLUSION The Court directs the Clerk of Court to mail an information package to Plaintiff. The Court also directs the Clerk of Court to issue a summons for Detective Chavez,

complete a USM-285 form with the address for that Defendant, and deliver all documents necessary to effect service on that Defendant to the U.S. Marshals Service. The Court further grants Plaintiff leave to file an amended complaint in the manner directed above. An amended complaint form and a flyer from NYLAG are attached to this order. SO ORDERED. Dated: October 20, 2023 White Plains, New York

KENNETH M. KARAS United States District Judge DEFENDANT AND SERVICE ADDRESS Detective Chavez Ossining Police Department 88 Spring Street Ossining, New York 10562 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CVE TT a (clu ber if has b Write the full name of each plaintiff. evened) me eNews

against AMENDED

□ COMPLAINT ee Do you want a jury trial? LlYes ULINo

Write the full name of each defendant. If you need more space, 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 Il.

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. 2/10/17

I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case? [] Federal Question L] Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , ,is a citizen of the State of (Plaintiff's name)

(State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of

If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.

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If the defendant is an individual:

The defendant, , is a citizen of the State of (Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in . If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.

II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. 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 the same as those listed in the caption. Attach additional pages if needed. Defendant 1: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 2: First Name Last Name

Current Work Address (or other address where defendant may be served)

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

Current Work Address (or other address where defendant may be served)

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

Current Work Address (or other address where defendant may be served)

County, City State Zip Code III. 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 what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

IV. RELIEF State briefly what money damages or other relief you want the court to order. V. 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. agree to notify the Clerk's Office in writing of any changes to my mailing 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

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OYes [LINo If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.

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= = eee 14 ESE ° . New York ME Legal Assistance Group District of New York

The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York provides free limited legal assistance to individuals who are representing themselves or planning to represent themselves in civil lawsuits in federal court in Manhattan and White Plains. The clinic is staffed by attorneys, law students, and paralegals. Information given to clinic staff is confidential.

Clinic Staff Can: Clinic Staff Cannot: Advise on filing cases in federal court e Assist with federal civil cases that belong in a including on the issue of whether a = 3 different federal court, such as the Eastern District of should be filed in the Southern District of New York, which covers of New York, which covers New York or somewiierocisd Brooklyn, Queens, Staten Island, and Nassau and Provide legal advice in response to questions Suffolk Counties; that come up at any stage of litigation; e Assist with an appeal of your federal case; Assist in getting additional information or e Assist with state court cases, bankruptcy court cases, research into the legal issue in your case; or criminal cases; oo Review and explain court orders and filings ¢ Pay any of the costs associated with filing or by your opponent, and provide an overview of defending a lawsuit in federal court; the federal legal process in civil cases e File documents with the court on your behalf; generally; e Appear on your behalf other than representation at a Assist with motions, discovery, and strategy; mediation through the Southern District’s Alternative Assist with getting ready for depositions, Dispute Resolution Program, a court-ordered pretrial conferences, mediations, and court settlement conference, or, in appropriate cases, a appearances; deposition; Provide forms and instructions manuals; ° Write court documents for you, or In appropriate cases, help you retain bono ° Conduct an investigation into the facts of your case. counsel; Inappropriate cases, represent you in a Clinic Staff May Decline Assistance If: mediation through the Southern District’s Alternative Dispute Resolution Program, ora NYLAG has already given advice to your opponent; court-ordered settlement conference; e Your legal problem is beyond the scope of matters Inappropriate cases, represent you at a handled by the clinic; deposition; and e Providing assistance would conflict with the New York Inappropriate cases, provide referrals to Rules of Professional Conduct; other agencies and organizations that provide e Your income and/or assets are high enough to allow you civil legal services and/or social services. to retain private counsel; or e NYLAG determines, in its professional legal judgement, that (i) you have refused to cooperate with the Clinic’s counsel or follow the Clinic’s advice; (ii) any assistance would be unreasonably difficult for NYLAG to carry out; or (iii) your case is or will become frivolous, unreasonable, groundless, or without merit.

¢ a bene https://nylagoi.legalserver.org/modules/matter/extern_intake.php?pid=142&h=cea984& UJA ) □□□