Louis v. Morley

Opinion

USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK BLED DSO BLED DOC #: KEVIN LOUIS, DATE FILED: 1/27/2023 Plaintiff, 22-CV-10094 (NSR) -against- ORDER OF SERVICE JOHN MORLEY, et al., Defendants. NELSON S. ROMAN, United States District Judge: Plaintiff, who is currently incarcerated at Woodbourne Correctional Facility (“Woodbourme”), brings this pro se action under 42 U.S.C. § 1983, alleging that medical staff at Woodbourne and Sing Sing Correctional Facility showed deliberate indifference to his medical needs. By order dated January 20, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.! As set forth below, the Court (1) directs service on Defendants Superintendent David Howard, Dr. Ruiz, Dr. Harris Baker, and Dr. Aaron Roth; (2) directs the New York State Attorney General, under Valentin vy. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997), to identify the Nurse Administration, named as a John Doe Defendant; and (3) grants Plaintiff leave to file an amended complaint to allege facts in support of the claims he wishes to bring against Dr. John Morley, Deputy Commissioner and Chief Medical Officer. The Court also denies without prejudice Plaintiff’s request for an order to show cause and his request that the Court appoint pro bono counsel.

' Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).

DISCUSSION A. Order of Service: Superintendent Howard, Drs. Ruiz, Baker, and Roth 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.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 Defendants Howard, Ruiz, Baker, and Roth 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 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. If the complaint is not served within 90 days after the date the summonses are 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.

2 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 summonses and the 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 summonses are issued. B. Order to Identify Woodbourne Nurse Administrator 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 New York State Department of Corrections and Community Supervision (“DOCCS”) to identify Woodbourne’s “Nurse Administrator.” It is therefore ordered

that the New York State Attorney General, who is the attorney for and agent of the DOCCS, must ascertain the identity of this Doe Defendant whom Plaintiff seeks to sue here and the address where the defendant may be served. The Attorney General 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, the Court will direct the Clerk of Court to add to the caption of the complaint the Doe Defendant’s real name, and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 form with the address for the named Doe Defendant and deliver all documents necessary to effect service to the U.S. Marshals Service. C. Order to Amend To state a claim under 42 U.S.C. § 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 § 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 does not allege any facts showing how Defendant John Morley was personally involved in the events underlying his claims. In light of Plaintiff’s pro se status, the Court grants

him 60 days to file an amended complaint to allege facts in support of the claims he wishes to bring against Dr. Morley. If Plaintiff does not file an amended complaint, asserting claims against this Defendant, the Court will dismiss the claims Plaintiff sought to bring against this Defendant, for failure to state a claim upon which relief may be granted. Plaintiff is also granted leave to amend his complaint to include additional allegations regarding his (i) his medical treatment (or lack thereof); and (ii) any pain experienced by his condition. D. Order to Show Cause Plaintiff has filed an order to show cause requesting preliminary injunctive relief. To obtain such relief, Plaintiff must show: (1) that he is likely to suffer irreparable harm and (2) either (a) a likelihood of success on the merits of his case or (b) sufficiently serious questions going to the

merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in his favor. See UBS Fin. Servs., Inc. v. W.V. Univ. Hosps., Inc., 660 F. 3d 643, 648 (2d Cir. 2011) (citation and internal quotation marks omitted); Wright v. Giuliani, 230 F.3d 543, 547 (2000). Preliminary injunctive relief “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005) (internal quotation marks and citation omitted). The Court finds that Plaintiff has failed to show (1) a likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in his favor. Accordingly, Plaintiff’s request for an order to show cause is denied. E. Pro Bono Counsel The factors to be considered in ruling on an indigent litigant’s request for counsel include the merits of the case, Plaintiff’s efforts to obtain a lawyer, and Plaintiff’s ability to gather the facts

and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff’s motion for counsel is denied without prejudice to renewal at a later date. CONCLUSION The Clerk of Court is directed to mail an information package to Plaintiff. An amended complaint form is attached to this order. The Clerk of Court is further instructed to issue summonses for Defendants David Howard, Drs. Ruiz, Harris Baker, and Aaron Roth, complete the USM-285 forms with the addresses for

these Defendants, 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 New York State Attorney General at: Managing Attorney’s Office, 28 Liberty Street, 16th Floor, New York, NY 10005. The Clerk of Court is kindly directed to serve a copy of this Order to pro se Plaintiff and show service on the docket. The Court denies with prejudice Plaintiff’s request for an order to show cause (ECF 3) and his request for the appointment of pro bono counsel (ECF 6).

SO ORDERED. Dated: January 27, 2023 White Plains, New York NELSON S. ROMAN United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

Superintendent David Howard Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, NY 12788-1000 Dr. Ruiz Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, NY 12788-1000 Dr. Harris Baker Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, NY 12788-1000 Dr. Aaron Roth Sing Sing Correctional Facility 354 Hunter Street Ossining, NY 10562-5442 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) AMENDED -against- COMPLAINT (Prisoner) Do you want a jury trial? ☐Yes ☐ No 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. 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 in a “Bivens” action (against federal defendants). ☐ Violation of my federal constitutional rights ☐ 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 III. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: ☐ Pretrial detainee ☐ Civilly committed detainee ☐ Immigration detainee ☐ Convicted and sentenced prisoner ☐ 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 First Name Middle Initial Last Name Prison Address County, City State Zip Code Date on which I am delivering this complaint to prison authorities for mailing: