Medina v. New York State Division of Parole et al

Filing 89

ORDER: Accordingly, it is hereby: ORDERED that Plaintiff's claims against the New York State Department of Corrections and Community Supervision, the Bellevue Men's Shelter, and the New York City Department of Correction are dismissed. Th e Clerk of Court is respectfully directed to add the City of New York as a Defendant. The Court additionally directs the Clerk of Court 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 and Defendants Anderson (an ADA Coordinator at the NIC), Chaplain (an ADA Coordinator at the NIC), Copeland (a Correction Officer assigned to the ADA Coordinators), Bacon (the NYC DOC Disabilities Rights Coordinato r), Akpan (the NIC Law Library Coordinator), Liriano (a Correction Officer, Shield No. 13592), E. Rivera (Deputy Warden of the NIC), McQueen (a Correction Officer, Shield No. 18588), Dunbar (Warden of George Reno Vernon Center), Morales (Deputy Warde n of Programs at George Reno Vernon Center), Collins (Warden of the NIC), and Miller (Deputy Warden for Security at NIC) waive service of summons. The Clerk of Court is respectfully directed to (1) issue summonses for Defendants Corse- Johnson, Colte r, Estwick, Carswell, Risch, and N. Rivera (2) complete USM-285 forms with the service addresses for those defendants, (3) and deliver all documents necessary to effect service on those defendants to the U.S. Marshals Service. The Court directs the C lerk of Court to mail a copy of this order to pro se Plaintiff at 2886 Wilkinson Avenue, 2nd Floor, Bronx, NY 10461. 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)., City Of New York added. New York City Dept. of Homeless Services Bellevue Men's Shelter and New York State Department of Corrections & Community Supervision terminated. (Signed by Judge Vernon S. Broderick on 2/16/2021) (nb) Transmission to Pro Se Assistants for processing.

Case 1:20-cv-03763-VSB Document 89 Filed 02/16/21 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
ANTHONY MEDINA,
:
:
Plaintiff,
:
:
-against:
:
CITY OF NEW YORK, et al.,
:
:
Defendants. :
--------------------------------------------------------- X

2/16/2021

20-CV-3763 (VSB)
ORDER

VERNON S. BRODERICK, United States District Judge:
I.

Background
Plaintiff Anthony Medina brings this pro se action under 42 U.S.C. §§ 1983 and 1985,

Title II of the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act.1 The Court
construes Plaintiff’s second amended complaint as also asserting claims under state law.
Plaintiff seeks damages as well as declaratory and injunctive relief. By order dated June 23,
2020, I granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma
pauperis (“IFP”). (Doc. 7.)
Previously, I issued an order dismissing Plaintiff’s claims against the New York State
Department of Corrections and Community Supervision (“DOCCS”), the New York State
Division of Parole, the New York City Department of Homeless Services Bellevue Men’s
Shelter (“Bellevue Men’s Shelter”), and the New York City Department of Corrections (“NYC
DOC”). (Doc. 13.) I also dismissed Plaintiff’s claims that were duplicative of those that he
asserts in Medina v. Smalls, 20-CV-3985. (Id.) I added the City of New York as a defendant.
(Id.) Finally, I requested that certain defendants waive service of summons, and directed service
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Plaintiff was scheduled to be released from Sullivan Correctional Facility on January 8, 2021. (See Doc. 81.)

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on the remaining identified defendants. (Id.)
II.

Legal Standards
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
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 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) (internal quotation marks
and citations omitted, emphasis in original).
III.

Discussion
A. DOCCS, Bellevue Men’s Shelter, and NYC DOC
Plaintiff again sues many defendants, including defendants that I previously terminated

from the case: DOCCS, the Bellevue Men’s Shelter, and NYC DOC. (Doc. 82 at 79.) For the
reasons stated in my previous order, I dismiss Plaintiff’s claims against DOCCS, the Bellevue
Men’s Shelter, and NYC DOC. (See Doc. 13 at 3–4.)
Additionally, in light of Plaintiff’s pro se status and clear intention to assert claims
against the City of New York, I construe Plaintiff’s second amended complaint as asserting
claims against the City of New York, and direct the Clerk of Court to amend the caption of this

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action to replace the Bellevue Men’s Shelter and the NYC DOC 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.
B. Request to Waive Service of Summons
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
and Defendants Anderson, Chaplain, Copeland, Bacon, McQueen, Akpan, Liriano, E. Rivera,
Dunbar, Morales, Collins, and Miller waive service of summons.
C. Service on the Remaining Defendants
As 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. See 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). Although Rule 4(m) of the Federal
Rules of Civil Procedure generally requires that a summons and the complaint be served within
90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served
summonses and the second amended complaint on Defendants Corse-Johnson, Colter, Estwick,
Carswell, Risch, and N. Rivera, until the Court reviewed the second amended complaint and
ordered that summonses be issued for those defendants. I therefore extend the time to serve
those defendants until 90 days after the date that summonses are issued for those defendants. If
the second amended complaint is not served on those defendants within that time, 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);

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see also Murray v. Pataki, 378 F. App’x 50, 52 (2d Cir. 2010) (summary order) (“As long as the
[plaintiff proceeding IFP] provides the information necessary to identify the defendant, the
Marshals’ failure to effect service automatically constitutes ‘good cause’ for an extension of time
within the meaning of Rule 4(m).”).
To allow Plaintiff to effect service on Defendants Corse-Johnson, Colter, Estwick,
Carswell, Risch, and N. Rivera 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 each of those defendants. The Clerk of Court is further instructed to issue summonses
for those defendants, and deliver to the Marshals Service all of the paperwork necessary for the
Marshals Service to effect service on those defendants.
IV.

Conclusion

Accordingly, it is hereby:
ORDERED that Plaintiff’s claims against the New York State Department of Corrections
and Community Supervision, the Bellevue Men’s Shelter, and the New York City Department of
Correction are dismissed.
The Clerk of Court is respectfully directed to add the City of New York as a Defendant.
The Court additionally directs the Clerk of Court 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 and Defendants Anderson (an ADA Coordinator at the NIC), Chaplain (an
ADA Coordinator at the NIC), Copeland (a Correction Officer assigned to the ADA
Coordinators), Bacon (the NYC DOC Disabilities Rights Coordinator), Akpan (the NIC Law
Library Coordinator), Liriano (a Correction Officer, Shield No. 13592), E. Rivera (Deputy
Warden of the NIC), McQueen (a Correction Officer, Shield No. 18588), Dunbar (Warden of

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George Reno Vernon Center), Morales (Deputy Warden of Programs at George Reno Vernon
Center), Collins (Warden of the NIC), and Miller (Deputy Warden for Security at NIC) waive
service of summons.
The Clerk of Court is respectfully directed to (1) issue summonses for Defendants CorseJohnson, Colter, Estwick, Carswell, Risch, and N. Rivera (2) complete USM-285 forms with the
service addresses for those defendants, (3) and deliver all documents necessary to effect service
on those defendants to the U.S. Marshals Service.
The Court directs the Clerk of Court to mail a copy of this order to pro se Plaintiff at
2886 Wilkinson Avenue, 2nd Floor, Bronx, NY 10461.
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:

February 16, 2021
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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