Robinson v. City of Yonkers Police Department

Opinion

DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 5/1/2023 QUAMAINE DAWSON ROBINSON, Plaintiff, -against- CITY OF YONKERS POLICE DEPARTMENT; 22-CV-3333 (NSR) MICHAEL COX; IAN GALLAGHER; THOMAS DYLAN; JOHN WILT: LAMONT ORDER OF SERVICE BROWN; JESSICA DAY; CHRISTOPHER COONEY; EDWARD BYRNE, JR.; ADAM SOUSA; BRENDAN S. MULROY; NEWS 12 STAFF, Defendants. NELSON S. ROMAN, United States District Judge: Plaintiff, who is currently incarcerated at Washington Correctional Facility, brings this pro se action under 42 U.S.C. § 1983 and state law. By order dated April 25, 2022, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), that is, without prepayment of fees.! 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 in forma pauperis 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 relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d

' 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).

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. City of Yonkers Police Department Plaintiff’s claims against the City of Yonkers Police Department must be dismissed because, under New York Law, city agencies and departments lack the capacity to be sued. See

Omnipoint Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) (“In New York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law, departments which are merely administrative arms of a municipality[] do not have a legal identity separate and apart from the municipality and cannot sue or be sued.”); see also N.Y. Gen. Mun. Law § 2 (“The term ‘municipal corporation,’ as used in this chapter, includes only a county, town, city and village.”). In light of Plaintiff’s pro se status and apparent intention to assert claims against the City of Yonkers, the Court construes the complaint as asserting claims against the City of Yonkers and directs the Clerk of Court to amend the caption of this action to replace the City of Yonkers

Police Department with the City of Yonkers. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses the City of Yonkers may wish to assert. B. Service on Named Defendants Because Plaintiff has been granted permission to proceed IFP, Plaintiff 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)). 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 the summons and complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. If the complaint is not served 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) (“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 Defendants City of Yonkers, News 12, and Police Officers Michael Cox, Ian Gallagher, Thomas Dylan, John Wilt, Lamont Brown, Jessica Day, Christopher Cooney, Edward Byrne, Jr., Adam Sousa, and Brendan S. Mulroy 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 each of these defendants. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these defendants. Plaintiff must notify the Court in writing if Plaintiff’s address changes, and the Court may dismiss the action if Plaintiff fails to do so. C. Referral to NYLAG Plaintiff may wish to consult the legal clinic in this District that assists people who are parties in civil cases and who do not have lawyers. The New York Legal Assistance Group (“NYLAG”) operates the clinic. Because the clinic is not part of the court, among other things, it 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, which may take up to two weeks after receipt of the paperwork. Copies of the Clinic’s flyer, retainer, and intake form are attached to this order. CONCLUSION The Court dismisses Plaintiff’s claims against the Yonkers Police Department because it lacks the capacity to be sued. The Clerk of Court is directed to add the City of Yonkers as a Defendant. See Fed. R. Civ. P. 21. The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Defendants City of Yonkers, News 12, and Police Officers Michael Cox, Ian Gallagher, Thomas Dylan, John Wilt, Lamont Brown, Jessica Day, Christopher Cooney; Edward Byrne, Jr., Adam Sousa, and Brendan S. Mulroy and deliver to the U.S. Marshals Service all

documents necessary to effect service. Copies of the NYLAG Clinic’s flyer, retainer, and intake form 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 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 respectfully directed to mail a copy of this Order to pro se Plaintiff at Plaintiff’s address listed on ECF and to show service on the docket. SO ORDERED. Dated: May 1, 2023 White Plains, New York NELSON S.ROMAN United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

City of Yonkers Office of the Corporation Counsel 40 South Broadway, Room 300 Yonkers, New York 10701 News 12 930 Soundview Avenue Bronx, NY 10473 Police Officer Michael Cox City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 Police Officer Ian Gallagher City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 Police Officer Thomas Dylan City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 Police Officer John Wilt City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 Police Officer Lamont Brown City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 Police Officer Jessica Day City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 Police Officer Christopher Cooney City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 Police Officer Edward Byrne, Jr. City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 Police Officer Adam Sousa City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 Police Officer Brendan S. Mulroy City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701

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