UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK AMAURY URENA, Plaintiff, 24-CV-1880 (JHR) -against- ORDER OF SERVICE THE CITY OF NEW YORK et al., Defendants. JENNIFER H. REARDEN, United States District Judge: Plaintiff, who is proceeding pro se, brings this action under 42 U.S.C. § 1983 against Defendants the City of New York, the 48th Precinct (the “48th Precinct”) of the New York City Police Department (“NYPD”), Officer Aponte, and three John Doe defendants (the “Doe Defendants”). By Order dated April 8, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons stated below, the Court (i) dismisses the 48th Precinct as a Defendant because it is an entity that cannot be sued; (ii) directs service on Defendants City of New York and Officer Aponte; and (iii) directs the New York City Law Department to identify the Doe Defendants so that they may be served. DISCUSSION A. The 48th Precinct Plaintiff’s claims against the 48th Precinct must be dismissed because a precinct is not an entity that has the capacity to be sued. See, e.g., Orraca v. City of New York, 897 F. Supp. 148, 152 (S.D.N.Y. 1995) (“[T]he 25th Precinct is a subdivision of the Police Department without the capacity to be sued.”). To the extent the Court were to construe the claims against the 48th Precinct as brought against the New York City Police Department (“NYPD”), such claims also must be dismissed because the NYPD cannot be sued, pursuant to the New York City Charter. See 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.”). “The Court therefore dismisses the claim against the [48]th Precinct because it is a nonsuable entity and construes the claim involving the police as one brought against the City of New York.” Acevedo v. City of New York, No. 24 Civ. 0558 (LTS), 2024 WL 1641346, at *2 (S.D.N.Y. Apr. 15, 2024). B. Service on Defendants City of New York and Officer Aponte 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.1 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 City of New York and Officer Aponte through the U.S. Marshals Service, the Clerk of Court is instructed to complete a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for these Defendants. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service upon these Defendants. If the Complaint is not served within 90 days of the date the summons is issued, Plaintiff
should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that the plaintiff bears responsibility to request such an extension).
1 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 the summons and the Complaint until after the Court reviewed the Complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so. C. Order to Identify the Doe Defendants Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the Complaint, Plaintiff supplies sufficient information to permit the NYPD to identify the three Doe Defendants identified in the Complaint. It is therefore ordered that the New York City Law Department, which is the attorney for and agent of the NYPD, shall ascertain the identity and badge number of each John
Doe whom Plaintiff seeks to sue here and the address where each Doe Defendant may be served. The Law Department must provide this information to Plaintiff and the Court within sixty days of the date of this Order. Within thirty days of receiving this information, Plaintiff must file an amended complaint naming the Doe Defendants. The amended complaint will replace, not supplement, the original Complaint. An amended complaint form that Plaintiff should complete is attached to this Order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the addresses for the named John Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service.
CONCLUSION The Court dismisses Plaintiff’s claims against the 48th Precinct because the 48th Precinct does not have the capacity to be sued. The Clerk of Court is directed to issue a summons for Defendants City of New York and Officer Aponte, complete the USM-285 forms with the address(es) for these Defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further directed to mail a copy of this Order and the Complaint to the New York City Law Department at 100 Church Street, New York, NY 10007. Finally, the Clerk of Court is further directed to mail an information package to Plaintiff. SO ORDERED. Dated: May 13, 2024 New York, New York □□□ IFER H. REARDEN United States District Judge
DEFENDANT AND SERVICE ADDRESS
Montefiore Medical Center 853 Longwood Avenue Bronx, NY 10469 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
_____CV_______________ Write the full name of each plaintiff. (Include case number if one has been assigned)
AMENDED -against- COMPLAINT (Prisoner) Do you want a jury trial? ☐ Yes ☐ No
Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV.
NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2. I. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK AMAURY URENA, Plaintiff, 24-CV-1880 (JHR) -against- ORDER OF SERVICE THE CITY OF NEW YORK et al., Defendants. JENNIFER H. REARDEN, United States District Judge: Plaintiff, who is proceeding pro se, brings this action under 42 U.S.C. § 1983 against Defendants the City of New York, the 48th Precinct (the “48th Precinct”) of the New York City Police Department (“NYPD”), Officer Aponte, and three John Doe defendants (the “Doe Defendants”). By Order dated April 8, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons stated below, the Court (i) dismisses the 48th Precinct as a Defendant because it is an entity that cannot be sued; (ii) directs service on Defendants City of New York and Officer Aponte; and (iii) directs the New York City Law Department to identify the Doe Defendants so that they may be served. DISCUSSION A. The 48th Precinct Plaintiff’s claims against the 48th Precinct must be dismissed because a precinct is not an entity that has the capacity to be sued. See, e.g., Orraca v. City of New York, 897 F. Supp. 148, 152 (S.D.N.Y. 1995) (“[T]he 25th Precinct is a subdivision of the Police Department without the capacity to be sued.”). To the extent the Court were to construe the claims against the 48th Precinct as brought against the New York City Police Department (“NYPD”), such claims also must be dismissed because the NYPD cannot be sued, pursuant to the New York City Charter. See 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.”). “The Court therefore dismisses the claim against the [48]th Precinct because it is a nonsuable entity and construes the claim involving the police as one brought against the City of New York.” Acevedo v. City of New York, No. 24 Civ. 0558 (LTS), 2024 WL 1641346, at *2 (S.D.N.Y. Apr. 15, 2024). B. Service on Defendants City of New York and Officer Aponte 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.1 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 City of New York and Officer Aponte through the U.S. Marshals Service, the Clerk of Court is instructed to complete a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for these Defendants. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service upon these Defendants. If the Complaint is not served within 90 days of the date the summons is issued, Plaintiff
should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that the plaintiff bears responsibility to request such an extension).
1 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 the summons and the Complaint until after the Court reviewed the Complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so. C. Order to Identify the Doe Defendants Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the Complaint, Plaintiff supplies sufficient information to permit the NYPD to identify the three Doe Defendants identified in the Complaint. It is therefore ordered that the New York City Law Department, which is the attorney for and agent of the NYPD, shall ascertain the identity and badge number of each John
Doe whom Plaintiff seeks to sue here and the address where each Doe Defendant may be served. The Law Department must provide this information to Plaintiff and the Court within sixty days of the date of this Order. Within thirty days of receiving this information, Plaintiff must file an amended complaint naming the Doe Defendants. The amended complaint will replace, not supplement, the original Complaint. An amended complaint form that Plaintiff should complete is attached to this Order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the addresses for the named John Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service.
CONCLUSION The Court dismisses Plaintiff’s claims against the 48th Precinct because the 48th Precinct does not have the capacity to be sued. The Clerk of Court is directed to issue a summons for Defendants City of New York and Officer Aponte, complete the USM-285 forms with the address(es) for these Defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further directed to mail a copy of this Order and the Complaint to the New York City Law Department at 100 Church Street, New York, NY 10007. Finally, the Clerk of Court is further directed to mail an information package to Plaintiff. SO ORDERED. Dated: May 13, 2024 New York, New York □□□ IFER H. REARDEN United States District Judge
DEFENDANT AND SERVICE ADDRESS
Montefiore Medical Center 853 Longwood Avenue Bronx, NY 10469 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
_____CV_______________ Write the full name of each plaintiff. (Include case number if one has been assigned)
AMENDED -against- COMPLAINT (Prisoner) Do you want a jury trial? ☐ Yes ☐ No
Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV.
NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2. I. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a “Bivens” action (against federal defendants). ☐ Violation of my federal constitutional rights ☐ Other: II. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary.
First Name Middle Initial Last Name
State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit.
Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held)
Current Place of Detention
Institutional Address
County, City State Zip Code III. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: ☐ Pretrial detainee ☐ Civilly committed detainee ☐ Immigration detainee ☐ Convicted and sentenced prisoner ☐ Other: IV. DEFENDANT INFORMATION To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary. Defendant 1: First Name Last Name Shield #
Current Job Title (or other identifying information)
Current Work Address
County, City State Zip Code Defendant 2: First Name Last Name Shield #
County, City State Zip Code Defendant 3: First Name Last Name Shield #
County, City State Zip Code Defendant 4: First Name Last Name Shield #
County, City State Zip Code V. STATEMENT OF CLAIM Place(s) of occurrence:
Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.
VI. RELIEF State briefly what money damages or other relief you want the court to order. VII. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.
Dated Plaintiff’s Signature
Prison Address
County, City State Zip Code
Date on which I am delivering this complaint to prison authorities for mailing: