Kaid v. Tatum

Opinion

USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK FLECTRONICALLY FILED DOC#: □□ SAEED KAID, DATE FILED: _ 6/14/2021 Plaintiff, -against- E.L. TATUM, JR., WARDEN; MR. MCBAIN, R & D UNIT MANAGER; ROSA PROTO, 9 & 11 NORTH UNIT MANAGER; E. WALKES, 9 & 11 NORTH UNIT COUNSELOR; S. ESPINET, 9 & 11 NORTH UNIT COUNSELOR; F. OLIVERES, 9 NORTH CASE MANAGER; Z. GARDNER, 9 & 11 NORTH SECRETARY; S. GREGORY, HEALTH SERVICES 20-CV-3643 (ALC) ADMINISTRATOR; A. BUSSANICH, DOCTOR; S. MANDEEP, PHYSICIAN ASSISTANT-CERTIFIED; T. ORDER OF SERVICE THOMAS, REGISTERED NURSE; K. ALRAHEEB, ASSISTANT WARDEN OF PROGRAMS; L. ANDERSON, DEPUTY OFFICER; S. ESGUERRA, CONTRACT RADIOLOGY TECHNICIAN; K. MASTERS, SHU OFFICER; T. DOCTOR, SPECIAL INVESTIGATIVE SERVICES; L. SHIVERS, DISCIPLINARY HEARING OFFICER; JOHN DOE, SHU LIEUTENANT; JOHN DOE, SHU OFFICER; AND MR. BANKS, DISCIPLINARY HEARING OFFICER, Defendants. ANDREW L. CARTER, JR., United States District Judge: Plaintiff, currently incarcerated in F.C.I. Fairton, brings this pro se action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that, while he was detained in the Metropolitan Correctional Center, Defendants violated his rights by failing to protect him and showing deliberate indifference to his serious medical needs. By order

dated July 24, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).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. See 28 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,

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). 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. Service on Named Defendants 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. 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 summonses and the complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the 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 summonses are 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 Defendants E.L. Tatum, Jr., Warden; Mr. McBain, R & D Unit Manager; Rosa Proto, 9 & 11 North Unit Manager; E. Walkes, 9 & 11 North Unit

Counselor; S. Espinet, 9 & 11 North Unit Counselor; F. Oliveres, 9 North Case Manager; Z. Gardner, 9 & 11 North Secretary; S. Gregory, Health Services Administrator; A. Bussanich, Doctor; S. Mandeep, Physician Assistant-Certified; T. Thomas, Registered Nurse; K. Alraheeb, Assistant Warden of Programs; L. Anderson, Deputy Officer; S. Esguerra, Contract Radiology Technician; K. Masters, SHU Officer; T. Doctor, Special Investigative Services; L. Shivers, Disciplinary Hearing Officer; and Mr. Banks, Disciplinary Hearing Officer, 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. Because these Defendants are federal Defendants, the Clerk of Court is further instructed to mark the box on the USM-285 forms labeled “Check for service on U.S.A.” 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 the Defendants. Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so. B. John Doe, SHU Lieutenant; and John Doe, SHU Officer 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 Metropolitan Correctional Center to identify John Doe, SHU Lieutenant; and John Doe, SHU Officer. It is therefore ordered that the United States Attorney’s Office, which is the attorney for and agent of the Metropolitan Correctional Center, must ascertain the identity and badge number of each John Doe whom Plaintiff seeks to sue here and the addresses where the Defendants may be served. The United States Attorney’s Office must 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 a second amended

complaint naming the John Doe Defendants. The second amended complaint will replace, not supplement, the original and amended complaints. A second amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed a second amended complaint, the Court will screen the second amended complaint and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the addresses for the named John Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service. CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. The Clerk of Court is further instructed to complete the USM-285 forms with the

addresses for E.L. Tatum, Jr., Warden; Mr. McBain, R & D Unit Manager; Rosa Proto, 9 & 11 North Unit Manager; E. Walkes, 9 & 11 North Unit Counselor; S. Espinet, 9 & 11 North Unit Counselor; F. Oliveres, 9 North Case Manager; Z. Gardner, 9 & 11 North Secretary; S. Gregory, Health Services Administrator; A. Bussanich, Doctor; S. Mandeep, Physician Assistant- Certified; T. Thomas, Registered Nurse; K. Alraheeb, Assistant Warden of Programs; L. Anderson, Deputy Officer; S. Esguerra, Contract Radiology Technician; K. Masters, SHU Officer; T. Doctor, Special Investigative Services; L. Shivers, Disciplinary Hearing Officer; and Mr. Banks, Disciplinary Hearing Officer, and deliver all documents necessary to effect service to the U.S. Marshals Service. Because these Defendants are federal Defendants, the Clerk of Court is further instructed to mark the box on the USM-285 forms labeled “Check for service on U.S.A.” The Clerk of Court is directed to mail a copy of this order and the complaint to United States Attorney’s Office at: 86 Chambers Street, New York, New York 10007. A second amended complaint form is attached to this order. 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: June 14, 2021 [Arde 7 (he New York, New York ANDREW L.CARTER,JR. United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

E.L. Tatum, Jr., Warden Metropolitan Correctional Center 150 Park Row New York, New York 10007 Mr. McBain, R & D Unit Manager Metropolitan Correctional Center 150 Park Row New York, New York 10007 Rosa Proto, 9 & 11 North Unit Manager Metropolitan Correctional Center 150 Park Row New York, New York 10007 E.Walkes, 9 & 11 North Unit Counselor Metropolitan Correctional Center 150 Park Row New York, New York 10007 S.Espinet, 9 & 11 North Unit Counselor Metropolitan Correctional Center 150 Park Row New York, New York 10007 F.Oliveres, 9 North Case Manager Metropolitan Correctional Center 150 Park Row New York, New York 10007 Z.Gardner, 9 & 11 North Secretary Metropolitan Correctional Center 150 Park Row New York, New York 10007 S.Gregory, Health Services Administrator Metropolitan Correctional Center 150 Park Row New York, New York 10007 A.Bussanich, Doctor Metropolitan Correctional Center 150 Park Row New York, New York 10007 S.Mandeep, Physician Assistant-Certified Metropolitan Correctional Center 150 Park Row New York, New York 10007 T.Thomas, Registered Nurse Metropolitan Correctional Center 150 Park Row New York, New York 10007 K.Alraheeb, Assistant Warden of Programs Metropolitan Correctional Center 150 Park Row New York, New York 10007 L.Anderson, Deputy Officer Metropolitan Correctional Center 150 Park Row New York, New York 10007 S.Esguerra, Contract Radiology Technician Metropolitan Correctional Center 150 Park Row New York, New York 10007 K.Masters, SHU Officer Metropolitan Correctional Center 150 Park Row New York, New York 10007 T.Doctor, Special Investigative Services Metropolitan Correctional Center 150 Park Row New York, New York 10007 L.Shivers, Disciplinary Hearing Officer Metropolitan Correctional Center 150 Park Row New York, New York 10007 Mr. Banks, Disciplinary Hearing Officer Metropolitan Correctional Center 150 Park Row New York, New York 10007 8

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CVE Write the full name of each plaintiff. (Include case number if one has been assigned)

-against- COMPLAINT (Prisoner) Do you want a jury trial? ssssssss...0.0.0. 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: II. 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 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 #

Current Job Title (or other identifying information)

Current Work Address

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

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 anonfrivolous 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

Date on which | am delivering this complaint to prison authorities for mailing: