Thomas v. NYPD et al

Filing 10

ORDER. For the reasons explained in the attached order, Thomas's application to proceed in forma pauperis under 28 U.S.C. § 1915 is granted. The Clerk of Court shall prepare a summons against defendant Captain Williams, Badge #820, a nd the United States Marshals Service shall serve the summons, complaint, amended complaint and a copy of this order upon the defendant without prepayment of fees. A courtesy copy of the same papers shall be mailed to the Corporation Counsel for the City of New York, Special Federal Litigation Division. I leave to the magistrate judge how to proceed with respect to the Defendants John Doe 1-5. Ordered by Judge John Gleeson on 4/4/2013. (O'Reilly, Helen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NOT FOR PUBLICATION

ROODY THOMAS,
Plaintiff,

MEMORANDUM
AND ORDER

-against12-CV-6327 (JG) (LB)
CAPTAIN WILLIAMS, BADGE # 820,
JOHN DOE #1, JOHN DOE #2, JOHN DOE #3,
JOHN DOE #4, JOHN DOE #5,
Defendants.
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JOHN GLEESON, United States District Judge:
On December 27, 2012, plaintiff Roody Thomas, then incarcerated at the MidHudson Forensic Psychiatric Center, commenced this pro se action pursuant to 42 U.S.C. §
1983. Thomas sought damages on account of physical abuse, mental pain and anguish and
emotional distress caused by an alleged assault by a number of correction officers. Compl. 4,
ECF No. 1.

On February 4, 2013, I dismissed his claims against the New York Police

Department (“NYPD”) and the Department of Correction (“DOC”). However, I directed him to
file an amended complaint within 30 days elaborating on his allegations against individual
corrections officers.
Thomas filed an amended complaint on March 25, 2013.1 In it, he alleges that the
alleged assault indeed took place in 2008. He further alleges that “Captain Williams badge #
820 and several other officers assault[ed] him on over five different occasions” in 2008. Am.
Compl. 4, ECF No. 9. Since the statute of limitations for claims arising under 42 U.S.C. § 1983
is three years, this claim is likely time-barred absent equitable tolling.
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My order directing Thomas to file an amended complaint was mailed to Thomas’s last known
address at Mid-Hudson Forensic Psychiatric Center in New Hampton, New York; his mail was returned to sender,
see Doc No. 7. Thereafter, the Court learned that Thomas is currently being held at the Anna M. Kross Correctional
Facility. The order was mailed to his new address, and I granted Thomas additional time to file his amended
complaint. See Doc. No. 8.

The Second Circuit has indicated that mental incapacity may be relevant to the
equitable tolling inquiry. See Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011) (recognizing
that medical conditions, whether physical or psychiatric, can manifest extraordinary
circumstances meriting equitable tolling). Thomas’s original complaint presents facts that
suggest that mental incapacity may be a factor in this case. At the time he filed the original
complaint, Thomas was confined at the Mid-Hudson Forensic Psychiatric Center. See Compl. 2,
ECF No. 1. The Mid-Hudson Forensic Psychiatric Center provides services to patients admitted
by court order “consequent to judicial findings of ‘incompetent to stand trial’ or ‘not responsible
by reason of mental disease or defect.’” Office of Mental Health
http://www.omh.ny.gov/omhweb/facilities/mhpc/facility.htm (last visited April 1, 2013).
Accordingly, Thomas’s application to proceed in forma pauperis under 28 U.S.C.
§ 1915 is granted. Insofar as he seeks relief against Captain Williams, Badge #820, and other
unidentified individuals employed by the New York City Department of Correction on Rikers
Island, the Court allows those claims to proceed. The Clerk of Court shall prepare a summons
against defendant Captain Williams, Badge #820, and the United States Marshals Service shall
serve the summons, complaint, amended complaint and a copy of this order upon this defendant
without prepayment of fees. A courtesy copy of the same papers shall be mailed to the
Corporation Counsel for the City of New York, Special Federal Litigation Division.
However, plaintiff has not identified the other individual defendants consisting of
Officers John Doe 1-5, employed by the New York City Department of Correction on Rikers
Island in 2008. The United States Marshals Service will not be able to serve the John Doe
defendants without further identifying information. In Valentin v. Dinkins, 121 F.3d 72 (2d Cir.
1997) (per curiam), the Second Circuit made clear that a pro se litigant is entitled to assistance

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from the district court in identifying a defendant. I leave that task to the magistrate judge
assigned to the case.
So ordered.
John Gleeson, U.S.D.J.
Dated: April 4, 2013

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