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UNITED STATES DISTRICT COURT oe oe SOUTHERN DISTRICT OF NEW YORK | lx, □□□□□ □ ARNOLD L. ROBINSON, Plaintiff, -against- 20-CV-642 (NSR) COMMISSIONER JOSEPH SPANO; ORDER OF SERVICE SERGEANT McWILLIAMS; SERGEANT BARESI, Shield No. 221, Defendants.
NELSON S. ROMAN, United States District Judge: Plaintiff, currently incarcerated at the Westchester County Jail, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants failed to protect him from other prisoners. By order dated January 27, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IF P),! 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 ofa 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).
| 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).
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. DISCUSSION A. Claims Against Commissioner Spano To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dept of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v, Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). A defendant may not be held liable under § 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for
the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). An individual defendant can be personally involved in a § 1983 violation if: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiff] by failing to act on information indicating that unconstitutional acts were occurring.
Colon, 58 F.3d at 873. Moreover, where a plaintiff names a defendant in the caption, but the complaint contains no substantive allegations against the defendant, dismissal of the complaint as to that defendant is appropriate. See Iwachiw v. New York State Dept. of Motor Vehicles, 299 F. Supp. 2d 117, 121 (E.D.N.Y, 2004), aff'd, 396 F.3d 525 (2d Cir. 2005); Dove v. Fordham Univ, 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999) (“[W]here the complaint names a defendant in the caption but contains no allegations indicating exactly how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted”) (citations omitted), Plaintiff lists Commissioner Spano in the caption of the complaint, but the complaint itself contains no allegations suggesting that Spano was personally involved in the events underlying Plaintiff’s claims. Accordingly, Plaintiff’s claims against Commissioner Spano are dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B) Gi). B. Order of Service 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)). Although Rule 4(m) of the Federal Rules of
2«Although the Supreme Court’s decision in [Ashcroft v. Igbal, 556 U.S. 662 (2009)] may have heightened the requirements for showing a supervisor’s personal involvement with respect to certain constitutional violations,” the Second Circuit has not yet examined that issue. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
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.
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UNITED STATES DISTRICT COURT oe oe SOUTHERN DISTRICT OF NEW YORK | lx, □□□□□ □ ARNOLD L. ROBINSON, Plaintiff, -against- 20-CV-642 (NSR) COMMISSIONER JOSEPH SPANO; ORDER OF SERVICE SERGEANT McWILLIAMS; SERGEANT BARESI, Shield No. 221, Defendants.
NELSON S. ROMAN, United States District Judge: Plaintiff, currently incarcerated at the Westchester County Jail, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants failed to protect him from other prisoners. By order dated January 27, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IF P),! 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 ofa 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).
| 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).
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. DISCUSSION A. Claims Against Commissioner Spano To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dept of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v, Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). A defendant may not be held liable under § 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for
the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). An individual defendant can be personally involved in a § 1983 violation if: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiff] by failing to act on information indicating that unconstitutional acts were occurring.
Colon, 58 F.3d at 873. Moreover, where a plaintiff names a defendant in the caption, but the complaint contains no substantive allegations against the defendant, dismissal of the complaint as to that defendant is appropriate. See Iwachiw v. New York State Dept. of Motor Vehicles, 299 F. Supp. 2d 117, 121 (E.D.N.Y, 2004), aff'd, 396 F.3d 525 (2d Cir. 2005); Dove v. Fordham Univ, 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999) (“[W]here the complaint names a defendant in the caption but contains no allegations indicating exactly how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted”) (citations omitted), Plaintiff lists Commissioner Spano in the caption of the complaint, but the complaint itself contains no allegations suggesting that Spano was personally involved in the events underlying Plaintiff’s claims. Accordingly, Plaintiff’s claims against Commissioner Spano are dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B) Gi). B. Order of Service 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)). Although Rule 4(m) of the Federal Rules of
2«Although the Supreme Court’s decision in [Ashcroft v. Igbal, 556 U.S. 662 (2009)] may have heightened the requirements for showing a supervisor’s personal involvement with respect to certain constitutional violations,” the Second Circuit has not yet examined that issue. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
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 Sergeant McWilliams and Sergeant Baresi 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 summonses 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 his address changes, and the Court may dismiss the action if Plaintiff fails to do so. CONCLUSION Plaintiff’s claims against Commissioner Spano are dismissed for failure to state a claim
on which relief may be granted. 28 U.S.C. § 191 5(e)(2)(B) (Gi). The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package.
The Clerk of Court is further instructed to issue summonses, complete the USM-285 forms with the addresses for Defendants McWilliams and Baresi, and deliver to the U.S. Marshals Service all documents necessary to effect service. 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 the date of this order, Defendants must serve responses to these standard discovery requests. In their
responses, Defendants must quote each request verbatim.’ 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: J an. 3| , 202% ooo White Plains, New York JA Lobe 5. ROMAN United States District Judge
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.
DEFENDANTS AND SERVICE ADDRESSES
I. Sergeant Mc Williams Westchester County Jail P.O. Box 10, Woods Rd. Valhalla, NY 10595 2. Sergeant Baresi, Shield No. 221 Westchester County Jail P.O. Box 10, Woods Rd. Valhalla, NY 10595