UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK. | MJAHID NASIRUDDIN, Plaintiff, 21-CV-7044 (CS) - -against- ORDER OF SERVICE UNITED STATES OF AMERICA, Defendant. CATHY SEIBEL, United States District Judge: Plaintiff, who is currently incarcerated in F.C.I. Otisville, brings this pro se action under =
28 U.S.C. § 1331, alleging that prison officials at F.C.I. Otisville used excessive force against him and denied him proper medical treatment. Plaintiff paid the filing fees to bring this. action.! 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 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 relicf. 28 U.S.C: § 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).
' By order dated August 20, 2021, Chief Judge Swain directed Plaintiff, within thirty days of the date of that order, to either pay the $402.00 filing fees required to file a civil action in federal court or to request permission to proceed in forma pauperis (IFP), that is, without prepayment of fees, to submit a completed and signed IFP application and prisoner authorization. (ECF No. 2.) Plaintiff paid the filing fees on September 21, 2021.
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 a claim for relief “that is plausible on its face.” Bell Ail. Corp. v. Twombly, 550 U.S. 544, 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. Igbal, 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 USS. at 555. Afier 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. 7d. DISCUSSION Because Plaintiff alleges that his constitutional rights were violated by employees of the federal government, the Court liberally construes Plaintiff’ s complaint as asserting claims under Bivens y. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See
>
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“[Bivens] is the federal analog to suits brought against state officials under [§ 1983].”). A. United States of America Under the doctrine of sovereign immunity, the United States of America is immune from
any liability arising out of Plaintiff’s claims. The doctrine of sovereign immunity bars federal courts from hearing al! suits against the federal government, including suits against federal agencies, unless sovereign immunity has been waived,” United States v. Mitchell, 445 U.S. 535, 538 (1980); see Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency . . . is essentially a suit against the United States, such suits are . , . barred under the doctrine of sovereign immunity, unless such immunity is waived.”). The Court therefore dismisses all claims brought against the United States of America under the doctrine of sovereign immunity. See 28 U.S.C. § 1915(€)(2)(B)Gii).
2 The Federal Tort Claims Act, codified at 28 U.S.C. §§ 2671-80 “FTCA”), provides for a waiver of sovereign immunity for certain claims for monetary damages arising from the tortious conduct of federal government officers or employees acting within the scope of their office or employment. See 28 U.S.C. § 1346(b)(1). Plaintiff fails, however, to allege facts showing compliance with the FTCA’s procedural requirements. Johnson v, Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999). Before bringing a claim in a federal district court under the FTCA, a claimant must first exhaust her administrative remedies by filing a claim with the appropriate federal government entity and must receive a final written determination. 28 U.S.C. § 2675(a). If no final written determination is made by the appropriate federal government entity within six months of the date of the claimant’s filing, the claimant may bring a FTCA action in a federal district court. Jd. This requirement is jurisdictional and cannot be waived. See Celestine □□ Mount Vernon Neighborhood Health Cir., 403 F.3d 76, 82 (2d Cir. 2005), Plaintiff does not . allege facts showing that he has filed an administrative claim under the FTCA with any federal government entity with respect to his claims. . 3
The United States Attorney will become aware of this lawsuit upon service of this Order, and the Court is confident that it will take the required steps to ensure the preservation of any video or other evidence. Accordingly, no injunction in that regard is necessary. B.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK. | MJAHID NASIRUDDIN, Plaintiff, 21-CV-7044 (CS) - -against- ORDER OF SERVICE UNITED STATES OF AMERICA, Defendant. CATHY SEIBEL, United States District Judge: Plaintiff, who is currently incarcerated in F.C.I. Otisville, brings this pro se action under =
28 U.S.C. § 1331, alleging that prison officials at F.C.I. Otisville used excessive force against him and denied him proper medical treatment. Plaintiff paid the filing fees to bring this. action.! 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 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 relicf. 28 U.S.C: § 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).
' By order dated August 20, 2021, Chief Judge Swain directed Plaintiff, within thirty days of the date of that order, to either pay the $402.00 filing fees required to file a civil action in federal court or to request permission to proceed in forma pauperis (IFP), that is, without prepayment of fees, to submit a completed and signed IFP application and prisoner authorization. (ECF No. 2.) Plaintiff paid the filing fees on September 21, 2021.
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 a claim for relief “that is plausible on its face.” Bell Ail. Corp. v. Twombly, 550 U.S. 544, 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. Igbal, 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 USS. at 555. Afier 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. 7d. DISCUSSION Because Plaintiff alleges that his constitutional rights were violated by employees of the federal government, the Court liberally construes Plaintiff’ s complaint as asserting claims under Bivens y. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See
>
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“[Bivens] is the federal analog to suits brought against state officials under [§ 1983].”). A. United States of America Under the doctrine of sovereign immunity, the United States of America is immune from
any liability arising out of Plaintiff’s claims. The doctrine of sovereign immunity bars federal courts from hearing al! suits against the federal government, including suits against federal agencies, unless sovereign immunity has been waived,” United States v. Mitchell, 445 U.S. 535, 538 (1980); see Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency . . . is essentially a suit against the United States, such suits are . , . barred under the doctrine of sovereign immunity, unless such immunity is waived.”). The Court therefore dismisses all claims brought against the United States of America under the doctrine of sovereign immunity. See 28 U.S.C. § 1915(€)(2)(B)Gii).
2 The Federal Tort Claims Act, codified at 28 U.S.C. §§ 2671-80 “FTCA”), provides for a waiver of sovereign immunity for certain claims for monetary damages arising from the tortious conduct of federal government officers or employees acting within the scope of their office or employment. See 28 U.S.C. § 1346(b)(1). Plaintiff fails, however, to allege facts showing compliance with the FTCA’s procedural requirements. Johnson v, Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999). Before bringing a claim in a federal district court under the FTCA, a claimant must first exhaust her administrative remedies by filing a claim with the appropriate federal government entity and must receive a final written determination. 28 U.S.C. § 2675(a). If no final written determination is made by the appropriate federal government entity within six months of the date of the claimant’s filing, the claimant may bring a FTCA action in a federal district court. Jd. This requirement is jurisdictional and cannot be waived. See Celestine □□ Mount Vernon Neighborhood Health Cir., 403 F.3d 76, 82 (2d Cir. 2005), Plaintiff does not . allege facts showing that he has filed an administrative claim under the FTCA with any federal government entity with respect to his claims. . 3
The United States Attorney will become aware of this lawsuit upon service of this Order, and the Court is confident that it will take the required steps to ensure the preservation of any video or other evidence. Accordingly, no injunction in that regard is necessary. B. Rule 21 of the Federal Rules of Civil Procedure Plaintiff asserts that on July 21, 2021, prison officials used excessive force against him and denied him proper medical attention. Because Plaintiff fails to name as Defendants the prison officials involved in the alleged deprivation of his rights, the Clerk of Court is directed, under Rule 21 of the Federal Rules of Civil Procedure, to amend the caption of this action to add “John Doe 1 ~ 10” as Defendants. This amendment is without prejudice to any defenses that these Defendants may wish to assert. Cc, John Doe Defendants 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 F.C.1. Otisville to identify the prison officials involved in the alleged deprivation of Plaintiff's rights on July 21, 2021. It is therefore ordered that the United States Attorney’s Office, which is the attorney for and agent of F.C.I. Otisville, 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 an amended complaint naming the John/Jane Doe Defendants. 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 these Defendants.
CONCLUSION The Court dismisses Plaintiff’s claims against the United States of America. See 28 US.C. § 1915(e)(2)(B)(ii). The Clerk of Court is directed to add “John Doe 1- 10” as Defendants, pursuant to Fed, R. Civ. P. 21. This amendment is without prejudice to any defenses that theme Defendants may wish to assert. The Clerk of Court is further 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. 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 in forma pauperis 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). The Clerk of Court is also directed to mail a copy of this order to Plaintiff, together with an information package. SO ORDERED. Dated: October 18, 2021 White Plains, New York mt
United States District Judge
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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? a _ [1Y¥es CINo
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 on/y: 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 in a “Bivens” action (against federal defendants). L) 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
i 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) i Current Place of Detention
a Institutional Address
ee County, City State Zip Code Ill PRISONER STATUS Indicate below whether you are a prisoner or other confined person: C] Pretrial detainee Civilly committed detainee CL] Immigration detainee Convicted and sentenced prisoner Other:
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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 Cade Defendant 4: First Name Last Name Shield #
County, City State Zip Code
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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 wrongfui actions. Attach additional pages as necessary.
a i
i ree eg a
□
i NN
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INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.
VIL RELIEF State briefly what money damages or other relief you want the court to order.
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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. T 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 | 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 Lam delivering this complaint to prison authorities for mailing:
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