UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JUAN ORTIZ, Plaintiff, -against- 23-CV-2047 (ALC) NEW YORK CITY; NEW YORK CITY DEPT. ORDER OF SERVICE OF CORRECTIONS; C.O. CARABALLO #4513, Defendants. ANDREW L. CARTER, JR., United States District Judge: Plaintiff, who is currently detained in the North Infirmary Command on Rikers Island, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. Named as Defendants are the City of New York, the New York City Department of Correction (“DOC”), and Correction Officer Caraballo #4513. By order dated March 14, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 For the reasons set forth below, the Court dismisses Plaintiff’s claims against the DOC, requests that the City of New York and Correction Officer Caraballo waive service of summons, and grants Plaintiff leave to file an amended complaint alleging facts supporting a claim for inadequate medical care. STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, 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
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). F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when 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). DISCUSSION A. Claims against the New York City Department of Correction Plaintiff’s claims against the DOC must be dismissed because an agency of the City of New York 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, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”). The Court therefore dismisses Plaintiff’s claims against the
DOC. See N.Y. City Charter ch. 17, § 396. In light of Plaintiff’s pro se status, the Court construes Plaintiff’s allegations against the DOC as being asserted against the City of New York, which is also a named defendant in this action. B. Waiver of Service The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that the City of New York and Correction Officer Caraballo #4513 waive service of summons. C. Inadequate Medical Care In the complaint, Plaintiff alleges that he sustained injuries as a result of being left handcuffed in his cell overnight. In the “injuries” section of the complaint form, Plaintiff states that he “asked on numerous occasion[s]” to see a doctor regarding his injuries, but was “told nothing can be done.” (ECF 1, at 5.) Should Plaintiff be seeking to assert constitutional claims
under 42 U.S.C. § 1983, that he was denied access to adequate medical care, the Court grants him leave to file an amended complaint detailing those claims and naming as defendants the individual or individuals who were personally involved in allegedly denying him medical care. If Plaintiff does not know the name of a defendant, he may refer to that individual as “John Doe” or “Jane Doe” in both the caption and the body of the amended complaint.2 The naming of John Doe defendants, however, does not toll the three-year statute of limitations period governing this action and Plaintiff shall be responsible for ascertaining the true identity of any “John Doe” defendants and amending his complaint to include the identity of any “John Doe” defendants before the statute of limitations period expires.3 Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims
that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
2 For example, a defendant may be identified as: “Correction Officer John Doe #1 on duty March 16, 2023, at North Infirmary Command, during the 7-3 p.m. shift.” 3 Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure. D. New York Legal Assistance Group Clinic Plaintiff may consult the legal clinic opened in this District to assist 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 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 the New York City Department of Correction. See N.Y. City Charter ch. 17, § 396. The Clerk of Court is directed to electronically notify the New York City Department of
Correction and the New York City Law Department of this order. The Court requests that Defendants City of New York and Correction Officer Caraballo #4513 waive service of summons. Plaintiff is granted leave to file an amended complaint alleging facts suggesting a claim under Section 1983 for inadequate medical care and to name as defendants the individual or individuals he alleges failed to provide him with adequate medical care. Plaintiff must submit any amended complaint to this Court’s Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-2047 (ALC). An Amended Civil Rights Complaint form is attached to this order. Plaintiff is referred to the NYLAG Pro Se Clinic.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JUAN ORTIZ, Plaintiff, -against- 23-CV-2047 (ALC) NEW YORK CITY; NEW YORK CITY DEPT. ORDER OF SERVICE OF CORRECTIONS; C.O. CARABALLO #4513, Defendants. ANDREW L. CARTER, JR., United States District Judge: Plaintiff, who is currently detained in the North Infirmary Command on Rikers Island, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. Named as Defendants are the City of New York, the New York City Department of Correction (“DOC”), and Correction Officer Caraballo #4513. By order dated March 14, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 For the reasons set forth below, the Court dismisses Plaintiff’s claims against the DOC, requests that the City of New York and Correction Officer Caraballo waive service of summons, and grants Plaintiff leave to file an amended complaint alleging facts supporting a claim for inadequate medical care. STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, 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
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). F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when 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). DISCUSSION A. Claims against the New York City Department of Correction Plaintiff’s claims against the DOC must be dismissed because an agency of the City of New York 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, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”). The Court therefore dismisses Plaintiff’s claims against the
DOC. See N.Y. City Charter ch. 17, § 396. In light of Plaintiff’s pro se status, the Court construes Plaintiff’s allegations against the DOC as being asserted against the City of New York, which is also a named defendant in this action. B. Waiver of Service The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that the City of New York and Correction Officer Caraballo #4513 waive service of summons. C. Inadequate Medical Care In the complaint, Plaintiff alleges that he sustained injuries as a result of being left handcuffed in his cell overnight. In the “injuries” section of the complaint form, Plaintiff states that he “asked on numerous occasion[s]” to see a doctor regarding his injuries, but was “told nothing can be done.” (ECF 1, at 5.) Should Plaintiff be seeking to assert constitutional claims
under 42 U.S.C. § 1983, that he was denied access to adequate medical care, the Court grants him leave to file an amended complaint detailing those claims and naming as defendants the individual or individuals who were personally involved in allegedly denying him medical care. If Plaintiff does not know the name of a defendant, he may refer to that individual as “John Doe” or “Jane Doe” in both the caption and the body of the amended complaint.2 The naming of John Doe defendants, however, does not toll the three-year statute of limitations period governing this action and Plaintiff shall be responsible for ascertaining the true identity of any “John Doe” defendants and amending his complaint to include the identity of any “John Doe” defendants before the statute of limitations period expires.3 Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims
that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
2 For example, a defendant may be identified as: “Correction Officer John Doe #1 on duty March 16, 2023, at North Infirmary Command, during the 7-3 p.m. shift.” 3 Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure. D. New York Legal Assistance Group Clinic Plaintiff may consult the legal clinic opened in this District to assist 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 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 the New York City Department of Correction. See N.Y. City Charter ch. 17, § 396. The Clerk of Court is directed to electronically notify the New York City Department of
Correction and the New York City Law Department of this order. The Court requests that Defendants City of New York and Correction Officer Caraballo #4513 waive service of summons. Plaintiff is granted leave to file an amended complaint alleging facts suggesting a claim under Section 1983 for inadequate medical care and to name as defendants the individual or individuals he alleges failed to provide him with adequate medical care. Plaintiff must submit any amended complaint to this Court’s Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-2047 (ALC). An Amended Civil Rights Complaint form is attached to this order. Plaintiff is referred to the NYLAG Pro Se Clinic. Copies of the Clinic’s flyer, retainer, and intake forms are 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). The Clerk of Court is also directed to mail an information package to Plaintiff. SO ORDERED. Dated: April 7, 2023 [Arrdbe / (es New York, New York ANDREW L. CARTER, JR. United States District Judge
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