Sanders v. Garcia et al

Filing 5

ORDER: For the reasons stated in the attached, the Complaint, filed in forma pauperis, is dismissed as to Defendant Schriro pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B). No summons shall issue as to her. Plaintiff's exces sive force claims against Defendants Garcia, Bauda and the five John Doe Defendants shall proceed. The United States Marshal Service is directed to serve the Summons, the Complaint and this Order upon Defendants Garcia and Bauda without prepayment of fees.Because the United States Marshals Service will not be able to serve the John Doe Defendants without further identifying information, the Court requests that the Corporation Counsel for the City of New York ascertain the full names of the De fendants whom Plaintiff has identified as John Doe 1-5 and provide the addresses where these Defendants can currently be served within forty-five (45) days of this Order. See Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir. 1997) (per curiam), (finding that a pro se litigant is entitled to assistance from the district court in identifying a defendant and instructing district court to do so); Geathers v. Morgenthau, 173 F.3d 844 (2d Cir. 1999) (summary order) (explaining that distri ct court "had some obligation to assist the incarcerated plaintiff to obtain discovery necessary to identify the defendant police officer so as to avoid dismissal"). Corporation Counsel need not undertake to defend or indemnify these indivi duals at this juncture. This Order merely provides a means by which Plaintiff may name and properly serve Defendants as instructed by the Second Circuit in Valentin. Once this information is provided, Plaintiff's Complaint shall be deemed amended to reflect the full names and badge numbers of the John Doe Defendants, amended summonses shall be issued, and the Court shall direct service on these Defendants.The Clerk of Court is respectfully directed to send a copy of this Order to Plaintiff. The case is respectfully referred to the Honorable Lois Bloom, United States Magistrate Judge, for pretrial supervision. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 1/4/2017. (Gregorio, Heather)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY SANDERS,
NOT FOR PUBLICATION
Plaintiff,
-against-

MEMORANDUM & ORDER
16-CV-7005 (PKC) (LB)

CAPTAIN M. GARCIA, CAPTAIN BAUDA,
JOHN DOE 1-5, DORA SCHRIRO,
Commissioner,
Defendants.
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PAMELA K. CHEN, United States District Judge:
On December 16, 2016, Plaintiff Anthony Sanders, incarcerated at the West Facility on
Rikers Island, filed this pro se action against Defendants pursuant to 42 U.S.C. § 1983. The Court
grants Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), and, as set
forth below, dismisses the Complaint as to Defendant Dora Schriro (“Schriro”), but permits it to
proceed as to the other Defendants.
BACKGROUND
Plaintiff alleges that on November 15, 2016, Defendants Captain M. Garcia (“Garcia”) and
Captain Bauda (“Bauda”), along with five unidentified “John Doe” correction officers, used
excessive force against him while putting him on a bus to go to court. (Dkt. 1, (“Compl.”) at 4.)
Plaintiff alleges that Garcia tried to touch Plaintiff’s “private area” and had a “sharp object,” and
that as a result of the incident, Plaintiff sustained cuts on his arms and leg. (Id.) Plaintiff further
alleges that Bauda threatened Plaintiff that something would happen to him if he told anyone about

the incident and that Plaintiff consequently failed to seek treatment for his injuries. (Id.) Plaintiff
seeks damages for his injuries. (Id.)
STANDARD OF REVIEW
To survive dismissal, a complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Although all allegations contained in the complaint are assumed to be true, this tenet
is “inapplicable to legal conclusions.” Id.
In reviewing Plaintiff’s Complaint, the Court is mindful that he is proceeding pro se and
that his pleadings should be held “to less stringent standards than formal pleadings drafted by
lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980); accord Erickson v. Pardus, 551 U.S. 89, 94
(2007); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Nonetheless, the Court must screen a civil
complaint brought by a prisoner against a governmental entity or its agents and dismiss the
complaint or any portion of the complaint if the complaint is “frivolous, malicious, or fails to state
a claim upon which relief may be granted.” 28 U.S.C. § 1915A(a) & (b)(1); see Abbas v. Dixon,
480 F.3d 636, 639 (2d Cir. 2007). Moreover, pursuant to the in forma pauperis statute, the Court
must dismiss the action if it “(i) is frivolous or malicious, (ii) fails to state a claim on which relief
may be granted, or (iii) seeks monetary relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B).

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DISCUSSION
“It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.” Farid v. Ellen,
593 F.3d 233, 249 (2d Cir. 2010) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)); see
also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Williams v. Smith, 781 F.2d 319, 323 (2d
Cir. 1986). Here, Plaintiff fails to make any allegations against Schriro, the former Commissioner
for the New York City Department of Correction. A § 1983 complaint that does not allege the
personal involvement of a defendant fails as a matter of law. See Johnson v. Barney, 360 F. App’x
199, 201 (2d Cir. 2010) (summary order). Since the claim against Schriro appears to be based on
a theory of respondeat superior or vicarious liability, neither of which applies to a § 1983 action,
the claims against Schriro must be dismissed. Ashcroft, 556 U.S. at 676.
CONCLUSION
The Complaint, filed in forma pauperis, is dismissed as to Defendant Schriro pursuant to
28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B). No summons shall issue as to her. Plaintiff’s excessive
force claims against Defendants Garcia, Bauda and the five John Doe Defendants shall proceed.
The United States Marshal Service is directed to serve the Summons, the Complaint and this Order
upon Defendants Garcia and Bauda without prepayment of fees.
Because the United States Marshals Service will not be able to serve the John Doe
Defendants without further identifying information, the Court requests that the Corporation
Counsel for the City of New York ascertain the full names of the Defendants whom Plaintiff has
identified as John Doe 1-5 and provide the addresses where these Defendants can currently be
served within forty-five (45) days of this Order. See Valentin v. Dinkins, 121 F.3d 72, 75–76 (2d
Cir. 1997) (per curiam), (finding that a pro se litigant is entitled to assistance from the district
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court in identifying a defendant and instructing district court to do so); Geathers v. Morgenthau,
173 F.3d 844 (2d Cir. 1999) (summary order) (explaining that district court “had some obligation
to assist the incarcerated plaintiff to obtain discovery necessary to identify the defendant police
officer so as to avoid dismissal”). Corporation Counsel need not undertake to defend or indemnify
these individuals at this juncture. This Order merely provides a means by which Plaintiff may
name and properly serve Defendants as instructed by the Second Circuit in Valentin. Once this
information is provided, Plaintiff’s Complaint shall be deemed amended to reflect the full names
and badge numbers of the John Doe Defendants, amended summonses shall be issued, and the
Court shall direct service on these Defendants.
The Clerk of Court is respectfully directed to send a copy of this Order to Plaintiff. The
case is respectfully referred to the Honorable Lois Bloom, United States Magistrate Judge, for
pretrial supervision. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any
appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.

/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: January 4, 2017
Brooklyn, New York

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