Brown v. City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

PAUL BROWN,

Plaintiff,

ORDER OF SERVICE

-against-

21 Civ. 4632 (PGG)

NEW YORK CITY DEPARTMENT OF

CORRECTIONS,

Defendant.

PAUL G. GARDEPHE, United States District Judge:

Plaintiff, who is currently incarcerated in Ulster Correctional Facility, brings this

pro se action under 42 U.S.C. § 1983, alleging that Defendant was deliberately indifferent to his

risk of contracting COVID-19 when he was detained in the Anna M. Kross Center on Rikers

Island. By order dated June 11, 2021, the Court granted Plaintiff’s request to proceed without

prepayment of fees, that is, in forma pauperis.1 (See Dkt. No. 6)

LEGAL STANDARDS

The Court must dismiss a complaint, or portion thereof, 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 when 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]

1 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).

that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)

(citations omitted).

DISCUSSION

A. Claims against New York City Department of Correction

Plaintiff’s claims against the New York City Department of Correction must be

dismissed because an agency of the City of New York is not an entity that can be sued. 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.”); Jenkins v. City of New York, 478 F.3d 76, 93

n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F. Supp. 2d 385, 396 (S.D.N.Y.

2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”).2

In light of Plaintiff’s pro se status and clear intention to assert claims against the

City of New York, the Court construes the complaint as asserting claims against the City of New

York, and directs the Clerk of Court to amend the caption of this action to replace the New York

City Department of Correction with the City of New York. See Fed. R. Civ. P. 21. This

amendment is without prejudice to any defenses the City of New York may wish to assert.

2 Moreover, any claims Plaintiff seeks to assert against Rikers Island must be dismissed because

a jail facility is not a “person” within the meaning of § 1983. See Will v. Mich. Dep’t of State

Police, 491 U.S. 58 (1989) (state is not a “person” for the purpose of § 1983 claims); Zuckerman

v. Appellate Div., Second Dep’t Supreme Court, 421 F.2d 625, 626 (2d Cir. 1970) (court not a

“person” within the meaning of 42 U.S.C. § 1983); see, e.g., Whitley v. Westchester Cnty. Corr.

Fac. Admin., No. 97-CV-420 (SS), 1997 WL 659100, at *7 (S.D.N.Y. Oct. 22, 1997)

(correctional facility or jail not a “person” within the meaning of § 1983).

B. Waiver of Service

The Clerk of Court is directed to notify the New York City Department of

Correction and the New York City Law Department of this order. The Court requests that the

City of New York waive service of summons.

C. Plaintiff’s Request for Counsel

Plaintiff requests that the Court assign him pro bono counsel. (Dkt. No. 2) The

factors to be considered in ruling on an indigent litigant’s request for counsel include the merits

of the case, Plaintiff’s efforts to obtain a lawyer, and Plaintiff’s ability to gather the facts and

present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d

Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are

“[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because it is too

early in the proceedings for the Court to assess the merits of the action, Plaintiff’s motion for

counsel (Dkt. No. 2) is denied without prejudice to renewal at a later date.

CONCLUSION

The Clerk of Court is directed to mail a copy of this order to Plaintiff, together

with an information package, and note service on the docket.

The Court dismisses Plaintiff=s claims against the New York City Department of

Correction. See 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is directed to add the City of

New York as a Defendant under Fed. R. Civ. P. 21.

The Clerk of Court is further directed to electronically notify the New York City

Department of Correction and the New York City Law Department of this order. The Court

requests that Defendant City of New York waive service of summons.

The Court denies Plaintiff’s application for the Court to request pro bono counsel

(ECF 2) without prejudice to renewal at a later date.

SO ORDERED.

Dated: New York, New York

Tune 16, 2021 ads Aanrotohe

PAUL G. GARDEPHE

United States District Judge