SUNT DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 8/28/2023 KEVIN RODRIGUEZ, Plaintiff, -against- 23-CV-5265 (NSR) WESTCHESTER COUNTY DEPARTMENT OF ORDER OF SERVICE CORRECTIONS, Defendant.
NELSON S. ROMAN, United States District Judge: Plaintiff brings this pro se action under 42 U.S.C. § 1983, alleging that Officer Bravado used excessive force against Plaintiff while he was being attacked by another detainee, causing injury to Plaintiff’s right shoulder and lower back, and causing Plaintiff to be attacked a second time. By order dated August 24, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.! STANDARD OF REVIEW The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on 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); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. 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
' 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).
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. Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. 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. Iqbal, 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 U.S. at 555. After 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. Id. DISCUSSION A. Westchester County Department of Corrections Plaintiff’s claims against the Westchester County Department of Corrections must be dismissed because city agencies or departments do not have the capacity to be sued under New York
law. 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 clear intention to assert claims against Westchester County, the Court construes the complaint as asserting claims against Westchester County, and directs the Clerk of Court to amend the caption of this action to replace the Westchester County Department of Corrections with Westchester County. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses Westchester County may wish to assert. B. Rule 21 of the Federal Rules of Civil Procedure Plaintiff asserts that Officer Bravado used excessive force against him, but Plaintiff does not name Officer Bravado as a Defendant in this action. In light of Plaintiff’s pro se status, and clear
intention to bring claims against Officer Bravado, 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 Officer Bravado as a Defendant. This amendment is without prejudice to any defenses that this Defendant may wish to assert. C. Service on Westchester County and Officer Bravado 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.2 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).
To allow Plaintiff to effect service on Defendants Westchester County and Officer Bravado through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals
2 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the complaint until the Court reviewed the complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued.
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SUNT DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 8/28/2023 KEVIN RODRIGUEZ, Plaintiff, -against- 23-CV-5265 (NSR) WESTCHESTER COUNTY DEPARTMENT OF ORDER OF SERVICE CORRECTIONS, Defendant.
NELSON S. ROMAN, United States District Judge: Plaintiff brings this pro se action under 42 U.S.C. § 1983, alleging that Officer Bravado used excessive force against Plaintiff while he was being attacked by another detainee, causing injury to Plaintiff’s right shoulder and lower back, and causing Plaintiff to be attacked a second time. By order dated August 24, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.! STANDARD OF REVIEW The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on 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); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. 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
' 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).
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. Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. 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. Iqbal, 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 U.S. at 555. After 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. Id. DISCUSSION A. Westchester County Department of Corrections Plaintiff’s claims against the Westchester County Department of Corrections must be dismissed because city agencies or departments do not have the capacity to be sued under New York
law. 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 clear intention to assert claims against Westchester County, the Court construes the complaint as asserting claims against Westchester County, and directs the Clerk of Court to amend the caption of this action to replace the Westchester County Department of Corrections with Westchester County. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses Westchester County may wish to assert. B. Rule 21 of the Federal Rules of Civil Procedure Plaintiff asserts that Officer Bravado used excessive force against him, but Plaintiff does not name Officer Bravado as a Defendant in this action. In light of Plaintiff’s pro se status, and clear
intention to bring claims against Officer Bravado, 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 Officer Bravado as a Defendant. This amendment is without prejudice to any defenses that this Defendant may wish to assert. C. Service on Westchester County and Officer Bravado 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.2 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).
To allow Plaintiff to effect service on Defendants Westchester County and Officer Bravado through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals
2 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the complaint until the Court reviewed the complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. Service Process Receipt and Return form (“USM-285 form”) for 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. If the complaint is not served within 90 days after the date the summonses are issued, 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). Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss
the action if Plaintiff fails to do so. D. Local Civil Rule 33.2 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 service of the complaint, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.3 E. New York Legal Assistance Group Plaintiff may consider contacting the New York Legal Assistance Group’s (“NYLAG”) Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed
by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. The clinic is run by a private organization; it is not part of, or run by, the court. 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. A copy of the flyer with details of the clinic is attached to this order.
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. CONCLUSION The Court dismisses Plaintiff’s claims against the Westchester County Department of Corrections. See 28 U.S.C. § 1915(e)(2)(B)(~ii). The Clerk of Court is directed to substitute Westchester County as a Defendant under Fed. R. Civ. P. 21. The Clerk of Court is further directed to add Officer Bravado as a Defendant, pursuant to Fed. R. Civ. P. 21. The Clerk of Court is instructed to issue summonses for Westchester County and Officer Bravado, complete the USM-285 forms with the addresses for these Defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service. Local Civil Rule 33.2 applies to this action. Plaintiff is referred to the NYLAG Pro Se Clinic. A copy of the Clinic’s flyer is attached to this order. The Clerk of Court is further directed to mail a copy of this order and an information package to Plaintiff at Plaintiff’s address listed on ECF and to show service on the docket. SO ORDERED. Dated: August 28, 2023 White Plains, New York NELSONS.ROMAN- United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
Westchester County 148 Martine Avenue White Plains, New York 10601 Officer Bravado Westchester County Department of Corrections 10 Woods Road Valhalla, New York 10595 SD lee Pe ew Since 1990, NYLAG has provided free civil legal services New York ME Legal Assistance Group to New Yorkers who cannot afford private attorneys.
Free Legal Assistance for Self-Represented Civil Litigants in District Court for the Southern District Of New Yor|
NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York is a fre clinic staffed by attorneys, law students and paralegals to assist those who are themselves or planning to represent themselves in civil lawsuits in the outhern District of New York. The clinic does not provide full representation. The clinic, is not part of or run by the court, assists litigants with federal civil cases including involving civil rights, employment discrimination, labor law, social security benefit: and tax.
Contact the Clinic: (212) 659-6190 or complete our online intake form (found here: A staff member will contact you within a few days.
looking for assistance can also contact the clinic at the kiosk located across the hall the pro se clinic office in the courthouse.
this time, the clinic offers remote consultations only. Requests for in- appointments will be reviewed on a case-to-case basis. and Hours: Marshall United States Courthouse
Room LL22 40 Foley Square New York, NY 10007 (212) 659 6190 Open weekdays 10 a.m. — 4 p.m. Closed on federal and court holidays
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