Martinez v. New York Police Department

Opinion

UNITED STATES DISTRICT COURT | . SOUTHERN DISTRICT OF NEW YORK IAN CARLOS MARTINEZ, Plaintiff, NOV 2 6 2046 -against- 19-CV-9885 (AJN)

NEW YORK POLICE DEPARTMENT; ORDER OF SERVICE DAWIL VALDEZ, Shield 6573; OFFICER JOHN DOE, Defendants.

ALISON J. NATHAN, United States District Judge: Plaintiff, who appears pro se, brings this action asserting that the defendants have violated his rights under both federal and state law. He sues the New York Police Department (“NYPD”), NYPD Officer Dawil Valdez, and another unidentified “John Doe” NYPD officer. The Court construes Plaintiff's complaint as asserting claims under 42 U.S.C. § 1983 and under state law. By order dated November 22, 2019, the Court granted Plaintiffs request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). For the reasons discussed below, the Court construes Plaintiff's claims against the NYPD as brought against the City of New York, dismisses Plaintiffs claims against the NYPD, and directs the Clerk of Court to add the City of New York as a defendant. The Court directs service on Valdez and the City of New York. And the Court directs the Corporation Counsel of the City of New York to identify the John Doe defendant, his shield number, and the address where he may be served.

DISCUSSION A. NYPD The Court must dismiss Plaintiffs claims against the NYPD because an agency of the City of New York, like the NYPD, 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, 395 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”). The Court therefore dismisses Plaintiff's claims against the NYPD. In light of Plaintiff's pro se status and clear intention to assert claims against the City of New York, 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 the NYPD 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. B. Service on Valdez and the City of New York 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. See 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 the summons and 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 on Valdez and the City of New York until the Court reviewed the complaint

and ordered that summonses be issued for those defendants. The Court therefore extends the time to serve Valdez and the City of New York until 90 days after the date that the summonses for those defendants are issued. If the complaint is not served on those defendants 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) (summary order) (“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 Valdez and the City of New York through the U.S. Marshals Service, the Clerk of Court is instructed to fill out U.S. Marshals Service Process Receipt and Return forms (“USM-285 form”) for Valdez and the City of New York. The Clerk of Court is further instructed to issue summonses for Valdez and the City of New York, and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service

on Valdez and the City of New York. Plaintiff must notify the Court if his address changes, and the Court may dismiss this action if Plaintiff fails to do so.

C. The John Doe Defendant Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying an unidentified defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the NYPD to fully identify the John Doe Defendant. The John Doe Defendant is a member of the NYPD who, with Valdez, handcuffed Plaintiff on October 22, 2016, at an apartment building located at 875 Columbus Avenue, New York, New York, and brought him to an NYPD precinct. The John Doe Defendant may be

assigned to the NYPD’s 24th Precinct. It is therefore ordered that the Corporation Counsel of the City of New York, who is the attorney for and agent of the NYPD, must ascertain the full identity and shield number of the John Doe Defendant who Plaintiff seeks to sue here, as well as the address where the John Doe Defendant may be served. The Corporation Counsel 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 an amended complaint naming the newly identified individual as defendant. The amended complaint will replace, not supplement, the original complaint. An amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order directing service on the newly named defendant. CONCLUSION The Court directs the Clerk of Court to mail a copy of this order to Plaintiff, together with

an information package. The Court dismisses Plaintiffs claims against the NYPD. The Court also directs the Clerk of Court to add the City of New York as a defendant. Fed. R. Civ. P. 21. The Court further directs the Clerk of Court to complete USM-285 forms with the service addresses for Defendants Valdez and the City of New York, and deliver all documents necessary to effect service on those defendants to the U.S. Marshals Service. The Court additionally directs the Clerk of Court to mail a copy of this order and the complaint to the Corporation Counsel of the City of New York at 100 Church Street, New York, New York 10007. An 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: \\ | □□□ / New York, New York (] uy NATHAN United States District Judge

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DEFENDANTS AND SERVICE ADDRESSES 1. Dawil Valdez, Shield No. 6573 24th Precinct 151 100" Street New York, New York 10025 2. City of New York Law Department 100 Church Street New York, New York 10007

ee □□□□□□□□□□□□□□□□□□□□□□□□□□□ UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

□ — CV ee □□ Includ ber if has be Write the full name of each plaintiff. signed) numper irone naseeen

-against- AMENDED

COMPLAINT

a Do you want a jury trial? ONo Ne □ 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; ora 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.

n.., 32/4n/4 7

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? □

C1 Federal Question [1 Diversity of Citizenship A. If you checked Federal Question

Which of your federal constitutional or federal statutory rights have been violated?

□ tl tt I

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.

Il. 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)

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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)

Defendant 2: First Name Last Name ee Current Job Title (or other identifying information) □ Current Work Address (or other address where defendant may be served) □□ County, City State Zip Code

Defendant 3: First Name Last Name

Current Job Title (or other identifying information) □ Current Work Address (or other address where defendant may be served)

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Defendant 4: First Name Last Name

Current Job Title (or other identifying information) a i Current Work Address (or other address where defendant may be served) County, City State Zip Code Ill. 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. ns a

□ □ □ a

ee i □ a

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Ne Nn a NN Nn Nn NN NN

NN INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

Ne Ne NN NN a IV. RELIEF State briefly what money damages or other relief you want the court to order.

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NN a

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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. L 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

First Name Middle Initial Last Name

Street Address i County, City State Zip Code

Ihave read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OYes [J] No 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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