UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ADAM E. MURPHY, Plaintiff, -v.- 23-CV-6998 (KMK) ERT OFICER K. RODRIGUEZ, Badge #114; ORDER OF SERVICE ERT OFFICER PULLEN, Badge #474; ERT OFFICER PREVUKAJ, Badge #138; ORANGE COUNTY JAIL MEDICAL DEPT. WELLPATH, Defendants. KENNETH M. KARAS, United States District Judge: Plaintiff, who is currently detained in the Orange County Jail, brings this pro se Action alleging that Defendants violated his federal civil rights. (Compl. (Dkt. No. 1).) The Court construes the Complaint as asserting claims under 42 U.S.C. § 1983 that Defendants violated Plaintiff’s federal constitutional rights, as well as his rights under state law. (See id. at 3.) By order dated August 9, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. (Dkt. No. 4.)1 For the reasons set forth below, the Court: (1) dismisses Plaintiff’s claims against “Orange County Jail Medical Dept. Wellpath,” (see Compl. 1), and directs the Clerk of Court to substitute Orange County as a Defendant; (2) directs service on Defendants; (3) directs Defendants to comply with Local Civil Rule 33.2; and (4) refers Plaintiff to the NYLAG Clinic.
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). 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 a 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). DISCUSSION A. “Orange County Jail Medical Dept. Wellpath” To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48–49 (1988). The Court dismisses Plaintiff’s claims against “Orange County Jail Medical Dept.
Wellpath” because it is not a “person” for purposes of Section 1983 and is therefore not a proper defendant in a Section 1983 action. See Will v. Mich. Dep’ t of State Police, 491 U.S. 58 (1989) (finding that the state is not a “person” for the purpose of Section 1983 claims); Zuckerman v. Appellate Div., Second Dep’t Supreme Court, 421 F.2d 625, 626 (2d Cir. 1970) (finding that a court is not a “person” within the meaning of Section 1983); Whitley v. Westchester Cnty. Corr. Fac. Admin., No. 97-CV-420, 1997 WL 659100, at *7 (S.D.N.Y. Oct. 22, 1997) (finding that a correctional facility or jail is not a “person” within the meaning of Section 1983). In light of Plaintiff’s pro se status and his intention to assert claims against Orange County, the Court construes the Complaint as asserting claims against Orange County and directs the Clerk of Court to amend the caption of this Action to replace “Orange County Jail Medical Dept. Wellpath” with Orange County. See FED. R. CIV. P. 21. This amendment is without
prejudice to any defenses Orange County may wish to assert. B. Service on 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).2 To allow Plaintiff to effect service on Defendants ERT Officer K. Rodriguez, Badge #114; ERT Officer Pullen, Badge #474; ERT Officer Prevukaj (or Prelvukaj), Badge #138; and Orange County 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
2 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that summonses 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. (2d Cir. 2012) (holding that it is a 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.
C. Local Civil Rule 33.2 Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this Action. Those discovery requests are available on the Court’s website under “Forms” and are titled “Plaintiff’s Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents.” Within 120 days of service of the Complaint, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.3 D. NYLAG Clinic Plaintiff may consult the legal clinic in this District that assists people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or run by, the Court (and, among
other things, therefore, cannot accept filings on behalf of the Court, which must still be made by any pro se party through the Pro Se Intake Unit). To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, NY, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant. Once the
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ADAM E. MURPHY, Plaintiff, -v.- 23-CV-6998 (KMK) ERT OFICER K. RODRIGUEZ, Badge #114; ORDER OF SERVICE ERT OFFICER PULLEN, Badge #474; ERT OFFICER PREVUKAJ, Badge #138; ORANGE COUNTY JAIL MEDICAL DEPT. WELLPATH, Defendants. KENNETH M. KARAS, United States District Judge: Plaintiff, who is currently detained in the Orange County Jail, brings this pro se Action alleging that Defendants violated his federal civil rights. (Compl. (Dkt. No. 1).) The Court construes the Complaint as asserting claims under 42 U.S.C. § 1983 that Defendants violated Plaintiff’s federal constitutional rights, as well as his rights under state law. (See id. at 3.) By order dated August 9, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. (Dkt. No. 4.)1 For the reasons set forth below, the Court: (1) dismisses Plaintiff’s claims against “Orange County Jail Medical Dept. Wellpath,” (see Compl. 1), and directs the Clerk of Court to substitute Orange County as a Defendant; (2) directs service on Defendants; (3) directs Defendants to comply with Local Civil Rule 33.2; and (4) refers Plaintiff to the NYLAG Clinic.
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). 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 a 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). DISCUSSION A. “Orange County Jail Medical Dept. Wellpath” To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48–49 (1988). The Court dismisses Plaintiff’s claims against “Orange County Jail Medical Dept.
Wellpath” because it is not a “person” for purposes of Section 1983 and is therefore not a proper defendant in a Section 1983 action. See Will v. Mich. Dep’ t of State Police, 491 U.S. 58 (1989) (finding that the state is not a “person” for the purpose of Section 1983 claims); Zuckerman v. Appellate Div., Second Dep’t Supreme Court, 421 F.2d 625, 626 (2d Cir. 1970) (finding that a court is not a “person” within the meaning of Section 1983); Whitley v. Westchester Cnty. Corr. Fac. Admin., No. 97-CV-420, 1997 WL 659100, at *7 (S.D.N.Y. Oct. 22, 1997) (finding that a correctional facility or jail is not a “person” within the meaning of Section 1983). In light of Plaintiff’s pro se status and his intention to assert claims against Orange County, the Court construes the Complaint as asserting claims against Orange County and directs the Clerk of Court to amend the caption of this Action to replace “Orange County Jail Medical Dept. Wellpath” with Orange County. See FED. R. CIV. P. 21. This amendment is without
prejudice to any defenses Orange County may wish to assert. B. Service on 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).2 To allow Plaintiff to effect service on Defendants ERT Officer K. Rodriguez, Badge #114; ERT Officer Pullen, Badge #474; ERT Officer Prevukaj (or Prelvukaj), Badge #138; and Orange County 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
2 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that summonses 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. (2d Cir. 2012) (holding that it is a 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.
C. Local Civil Rule 33.2 Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this Action. Those discovery requests are available on the Court’s website under “Forms” and are titled “Plaintiff’s Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents.” Within 120 days of service of the Complaint, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.3 D. NYLAG Clinic Plaintiff may consult the legal clinic in this District that assists people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or run by, the Court (and, among
other things, therefore, cannot accept filings on behalf of the Court, which must still be made by any pro se party through the Pro Se Intake Unit). To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, NY, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant. Once the
3 If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit. paperwork is received, it may take up to two weeks for the Clinic to contact the litigant. Copies of the Clinic’s flyer, retainer, and intake form are attached to this Order. CONCLUSION The Court dismisses Plaintiff’s claims against “Orange County Jail Medical Dept. Wellpath” for failure to state a claim on which relief may be granted. See 28 U.S.C.
§ 1915(e)(2)(B)(ii). The Clerk of Court is directed to add Orange County as a Defendant under FED. R. CIV. P. 21. The Clerk of Court is further directed to issue summonses, complete the USM-285 forms with the addresses for ERT Officer K. Rodriguez, Badge #114; ERT Officer Pullen, Badge #474; ERT Officer Prevukaj (or Prelvukaj), Badge #138; and Orange County, and deliver all documents necessary to effect service to the U.S. Marshals Service. Local Civil Rule 33.2 applies to this Action. Copies of the NYLAG Clinic’s flyer, retainer, and intake form are attached to this Order. 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: August 29, 2023 White Plains, New York
KENNETH M. KARAS United States District Judge DEFENDANTS AND SERVICE ADDRESSES
Orange County Office of the Orange County Attorney Orange County Government Center 255 Main Street Goshen, New York 10924 ERT Office K. Rodriguez, Badge #114 Orange County Jail 110 Wells Farm Road Goshen, New York 10924 ERT Officer Puller, Badge #474 Orange County Jail 110 Wells Farm Road Goshen, New York 10924 ERT Officer Prevukaj (or Prelvukaj), Badge #138 Orange County Jail 110 Wells Farm Road Goshen, New York 10924 New York EEE Legal Assistance Group LEGAL CLINIC FOR PRO SE LITIGANTS IN THE SOUTHERN DISTRICT OF NEW YORK LIMITED SCOPE LEGAL ASSISTANCE RETAINER AGREEMENT retain the New York Legal Assistance Group (NYLAG) to provide you with limited scope legal assistance its Legal Clinic for Pro Se Litigants in the Southern District of New York (Clinic) under the terms set forth below. I. LIMITS OF ASSISTANCE The Clinic agrees to provide only limited scope legal assistance in connection with your matter. This means that: @ You remain a self-represented (pro se) litigant and are responsible for all aspects of your case. NYLAG 1s not your attorney of record in this matter. In the event that you are or become a party to a case in the Southern District of New York or any other forum, NYLAG will not enter an appearance or otherwise act on your behalf without expressly agreeing to do so and entering into a separate signed agreement with you. NYLAG has no obligation to enter into any such agreement. NYLAG has sole discretion to determine the specific type of services provided. These services may include providing advice and counsel about your case, explaining court orders and procedures, reviewing and commenting on your drafts, assisting with drafting, and discussing strategy. e@ This retainer covers an initial consultation only. NYLAG can stop assisting you with this matter at any time for any reason consistent with the New York Rules of Professional Conduct. NYLAG has not agreed to represent or assist you on any other matter in the future. If NYLAG does agree to any representation on another matter, then a separate signed retainer agreement will be necessary. @ You may request but are not guaranteed subsequent appointments. NYLAG will only provide assistance on subsequent appointments if it provides you with confirmation to you of such assistance, via email or otherwise, with such additional assistance governed by the terms of this agreement, including that the assistance is for that consultation only and that NYLAG has sole discretion to decide whether it will provide any additional future consultations. You are responsible for and must meet all deadlines in your case, regardless of whether you are able to have an appointment with the Clinic. II. FREE ASSISTANCE, NON-ATTORNEY PROVIDERS, AND COMPETENCY does not charge for this assistance. You may be assisted by law students and/or paralegals under the supervision of an attorney consistent with the Rules of Professional Responsibility. NYLAG’s assistance does guarantee success or any particular outcome but that NYLAG will provide competent assistance.
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