UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TERRELL ZEIGLER, Plaintiff, -against- NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (“DOCCS”); ANTHONY J. ANNUCCI, ACTING COMMMISSIONER, 23-CV-0707 (KMK) DOCCS; LEROY FIELDS, RETIRED SUPERINTENDENT, FISHKILL ORDER OF SERVICE CORRECTIONAL FACILITY; STEPHEN URBANSKI, RETIRED DEPUTY SUPERINTENDENT OF SECURITY, FISHKILL CORRECTIONAL FACILITY; AKINOLA AKINYOMBO, FORMER DEPUTY SUPERINTENDENT OF HEALTH, FISHKILL CORRECTIONAL FACILITY, Defendants. KENNETH M. KARAS, United States District Judge: Plaintiff, who is currently incarcerated at Fishkill Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his health and safety, resulting in Plaintiff contracting the COVID-19 virus and becoming seriously ill. By order dated February 1, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.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
1 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). governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s IFP 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 also 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). 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) (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. New York State Department of Corrections and Community Supervision (“DOCCS”) Plaintiff’s claims against DOCCS must be dismissed. “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’ Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). “The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id. New York has not waived its
Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states’ immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Plaintiff’s § 1983 claims against DOCCS, which is an arm of the State of New York, are therefore barred by the Eleventh Amendment and are dismissed. B. Service on Annucci, Fields, Urbanski, and Akinyombo 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
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. 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 Acting Commissioner Anthony J. Annucci, Retired Superintendent Leroy Fields, Retired Deputy Superintendent of Security
Stephan Urbanski, and Former Deputy Superintendent of Health Services Akinola Akinyombo 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 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 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
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TERRELL ZEIGLER, Plaintiff, -against- NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (“DOCCS”); ANTHONY J. ANNUCCI, ACTING COMMMISSIONER, 23-CV-0707 (KMK) DOCCS; LEROY FIELDS, RETIRED SUPERINTENDENT, FISHKILL ORDER OF SERVICE CORRECTIONAL FACILITY; STEPHEN URBANSKI, RETIRED DEPUTY SUPERINTENDENT OF SECURITY, FISHKILL CORRECTIONAL FACILITY; AKINOLA AKINYOMBO, FORMER DEPUTY SUPERINTENDENT OF HEALTH, FISHKILL CORRECTIONAL FACILITY, Defendants. KENNETH M. KARAS, United States District Judge: Plaintiff, who is currently incarcerated at Fishkill Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his health and safety, resulting in Plaintiff contracting the COVID-19 virus and becoming seriously ill. By order dated February 1, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.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
1 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). governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s IFP 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 also 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). 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) (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. New York State Department of Corrections and Community Supervision (“DOCCS”) Plaintiff’s claims against DOCCS must be dismissed. “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’ Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). “The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id. New York has not waived its
Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states’ immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Plaintiff’s § 1983 claims against DOCCS, which is an arm of the State of New York, are therefore barred by the Eleventh Amendment and are dismissed. B. Service on Annucci, Fields, Urbanski, and Akinyombo 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
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. 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 Acting Commissioner Anthony J. Annucci, Retired Superintendent Leroy Fields, Retired Deputy Superintendent of Security
Stephan Urbanski, and Former Deputy Superintendent of Health Services Akinola Akinyombo 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 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 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. C. The New York Legal Assistance Group Plaintiff may consult the legal clinic opened in this District to assist people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or run by, the Court (and, among other things, therefore 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. Once received, it may take up to two weeks for the Clinic to contact the litigant. Copies of the Clinic’s flyer, retainer, and intake form are attached to this order. CONCLUSION The Court dismisses Plaintiff’s claims against DOCCS. See 28 U.S.C. § 1915(e)(2)(B)(iii).
The Clerk of Court is further instructed to issue summonses for Acting Commissioner Anthony J. Annucci, Retired Superintendent Leroy Fields, Retired Deputy Superintendent of Security Stephan Urbanski, and Former Deputy Superintendent of Health Services Akinola Akinyombo, 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. Plaintiff is referred to the NYLAG Pro Se Clinic. Copies of the 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 IFP 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). SO ORDERED. Dated: March 3, 2023 White Plains, New York
KENNETH M. KARAS United States District Judge DEFENDANTS AND SERVICE ADDRESSES
Acting Commissioner Anthony J. Annucci Harriman State Campus, Building #2 1220 Washington Avenue Albany, New York 12226-2050 Retired Superintendent Leroy Fields c/o Office of Counsel, DOCCS Harriman State Campus, Building #2 1220 Washington Avenue Albany, New York 12226-2050 Retired Deputy Superintendent of Security Stephan Urbanski c/o Office of Counsel, DOCCS Harriman State Campus, Building #2 1220 Washington Avenue Albany, New York 12226-2050 Former Deputy Superintendent of Health Services Akinola Akinyombo c/o Office of Counsel, DOCCS Harriman State Campus, Building #2 1220 Washington Avenue Albany, New York 12226-2050 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 Centre Street 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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