DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOCH SOUTHERN DISTRICT OF NEW YORK DATE FILED: _ 6/16/2023 QUAMAINE DAWSON ROBINSON, Plaintiff, 22-CV-3333 (NSR) -against- SUPPLEMENTAL ORDER OF CITY OF YONKERS; MICHAEL COX; IAN SERVICE GALLAGHER; and JOHN MUELLER, 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.! This Court previously issued an Order of Service on May 1, 2023, in which this Court (1) dismissed Plaintiff’s claims against the Yonkers Police Department; (2) substituted Defendant Yonkers Police Department for the City of Yonkers; (3) ordered Clerk of Court to direct U.S. Marshals Service to effect service upon Defendants; and (4) informed Plaintiff that the New York Legal Assistance Group (““NYLAG”) is providing assistance to pro se litigants. (ECF No. 18.) Plaintiff later requested leave to file a Second Amended Complaint (ECF No. 28), and this Court granted Plaintiff leave to do so (ECF No. 29). Plaintiff filed a Second Amended Complaint on June 7, 2023. (ECF No. 30.)
' 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).
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 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, Police Commissioner John Mueller, and Police Officers Michael Cox and Ian Gallagher 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 U.S. 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. The Clerk of Court is further directed to instruct the U.S. Marshals Service to disregard the Court’s Order at ECF No. 18, in which this Court directed the Clerk of Court to deliver documents to the U.S. Marshals Service to effect service of the Amended Complaint, not the Second Amended Complaint (which is now the operative complaint).
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.
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DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOCH SOUTHERN DISTRICT OF NEW YORK DATE FILED: _ 6/16/2023 QUAMAINE DAWSON ROBINSON, Plaintiff, 22-CV-3333 (NSR) -against- SUPPLEMENTAL ORDER OF CITY OF YONKERS; MICHAEL COX; IAN SERVICE GALLAGHER; and JOHN MUELLER, 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.! This Court previously issued an Order of Service on May 1, 2023, in which this Court (1) dismissed Plaintiff’s claims against the Yonkers Police Department; (2) substituted Defendant Yonkers Police Department for the City of Yonkers; (3) ordered Clerk of Court to direct U.S. Marshals Service to effect service upon Defendants; and (4) informed Plaintiff that the New York Legal Assistance Group (““NYLAG”) is providing assistance to pro se litigants. (ECF No. 18.) Plaintiff later requested leave to file a Second Amended Complaint (ECF No. 28), and this Court granted Plaintiff leave to do so (ECF No. 29). Plaintiff filed a Second Amended Complaint on June 7, 2023. (ECF No. 30.)
' 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).
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 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, Police Commissioner John Mueller, and Police Officers Michael Cox and Ian Gallagher 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 U.S. 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. The Clerk of Court is further directed to instruct the U.S. Marshals Service to disregard the Court’s Order at ECF No. 18, in which this Court directed the Clerk of Court to deliver documents to the U.S. Marshals Service to effect service of the Amended Complaint, not the Second Amended Complaint (which is now the operative complaint).
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 Defendants City of Yonkers, Police Commissioner John Mueller, and Police Officers Michael Cox and Ian Gallagher and deliver to the U.S. Marshals Service all documents necessary to effect service. The Clerk of Court is further directed to instruct the U.S. Marshals Service to disregard the Court’s Order at ECF No. 18, in which this Court directed the Clerk of Court to deliver documents to the U.S. Marshals Service to effect service of the Amended Complaint, not the Second Amended Complaint (which is now the operative complaint). 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: June 16, 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 Police Commissioner John Mueller City of Yonkers Police Department 104 South Broadway Yonkers, NY 10701 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 Y | A G Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys. New York ME Legal Assistance Group Free Legal Assistance for Self-Represented Incarcerated Civil Litigants in Federal District Court
e NYLAG Legal Clinic for Pro Se Litigants in The Clinic Can: Southern District of New York is a free legal staffed by attorneys, law students, and « Assist with amending complaints and respondin; to assist those who are representing motions to dismiss; or planning to represent themselves, = Represent litigants for settlement purposes and, incarcerated litigants, in civil lawsuits in limited circumstances, for depositions; Southern District of New York federal court, = Assist with written discovery; habeas cases. The clinic is not part of or = Recruit pro bono counsel for depositions and tris by the court. and en if a litigant has consulted with Clinic staff, = Assist with oppositions to summary judgment. they retain other counsel and that counsel . . Clinic staff cannot assist with habeas cases « a notice of appearance, they remain : criminal matters. are responsible for doing is necessary in connection with the case; NyT_AG may also be unable to assist if it determines still oe co a a ' its professional legal judgement, that (i) you have petay bg Keo mas met ay Dame refused to cooperate with the Clinic’s counsel or foll Moynihan Courthouse, 40 Foley Square, way sass . □ : the Clinic’s advice; (ii) any assistance would be York, New York, or by following the court’s . □□ i A J □ unreasonably difficult for NYLAG to carry out; or (ii for filing via email as a pro se litigant. . . . your case is or will become frivolous, unreasonable, groundless, or without merit. the Clinic: the clinic and request a copy of our retainer, please call (212) 659-6190 and leave a message or to us at the following address: NYLAG Legal Clinic for Pro Se Litigants Thurgood Marshall Federal Courthouse Room LL22 40 Foley Square New York, NY 10007 mail a signed retainer back to the clinic at the above address. Once the paperwork is received, clinic will contact you. It may take up to two weeks. Disclaimer: The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation.
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