Nieves v. The New York State Ofice of Mental Health et al

Filing 10

ORDER: The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Because Plaintiff indicates that he wishes to amend his complaint, the Court will allow 30 days before screening the complaint to permit Plaintiff an opportunity to file an amended complaint. For Plaintiff's convenience, an amended complaint form is attached to this order. If Plaintiff does not amend his complaint within 30 days, the Court will screen the original complaint under 28 U.S.C. 1915(e)(2)(B). 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). (Signed by Judge Colleen McMahon on 1/7/2021) (sac) Transmission to Docket Assistant Clerk for processing.

Case 1:20-cv-09502-CM Document 10 Filed 01/07/21 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL NIEVES,
Plaintiff,
-againstTHE NEW YORK STATE OFFICE OF MENTAL
HEALTH; ANN MAIET, COMMISSIONER;
SULLIVAN, MD; NEW YORK CITY HEALTH
AND HOSPITALS CORP.; LEONARDO V.
LOPEZ, MD; SWATI SHIVALE, MD; TARAH
SCANLON; CATHERINE MIER; ASHLEY L.
VALENCIA, MD; ROBERT NADRICH, MD;
DENNIS POPEO, MD; STATE OF NEW YORK;
UNITED STATES FEDERAL GOVERNMENT,

20-CV-9502 (CM)
ORDER

Defendants.
COLLEEN McMAHON, Chief United States District Judge:
Plaintiff is currently confined in Bellevue Hospital’s prison ward. He brings this suit
under 42 U.S.C. § 1983 against eight Bellevue Hospital doctors (Defendants Sullivan, Lopez,
Shivale, Scanlon, Mier, Valencia, Nadrich, and Popeo), the New York City Health and Hospitals
Corporation, the State of New York, the United States, and the New York State Office of Mental
Health and its Commissioner, Ann Mariet.
After Plaintiff filed the complaint, he submitted multiple letters seeking either to dismiss
certain defendants or change the relief he is seeking. Plaintiff’s first letter asks the Court “to
allow an Amended Complaint in the matter of the removal of the mistaken defendant, Dennis
Popeo, M.D.” (ECF No. 7.) His next letter indicates that he “wishes to have Dr. Popeo Denise
[sic] exempted from [his] lawsuit against the New York State Office of Mental Health, et al.”
(ECF No. 8.) Finally, Plaintiff’s letter dated January 5, 2021, states that he “would like the Court
to remove defendants Tarah Scanlon, MD: Catherine Mier, and Ann Marie T. Sullivan, MD from
my complaint for damages, specifically.” (ECF No. 9.) The same letter indicates that Plaintiff

Case 1:20-cv-09502-CM Document 10 Filed 01/07/21 Page 2 of 9

“would also like to withdraw [his] suit for the specified amount of damages from each of the
other defendants listed in the Complaint . . . .” It is not entirely clear from Plaintiff’s January 5,
2021 letter if he wishes to dismiss certain defendants or simply alter the amount of his damages
request.
Under Rule 15 of the Federal Rules of Civil Procedure, a plaintiff has the right to amend
his or her complaint once without permission from the Court at any time before a responsive
pleading is served (or within 21 days after service of the complaint). See Fed. R. Civ. P. 15(a).
Plaintiff’s complaint has not yet been served on Defendants, and he therefore does not need
permission of the Court at this time to amend his complaint.
Because it appears from Plaintiff’s letters that he wishes to amend his complaint, the
Court will allow 30 days before screening the complaint to permit Plaintiff an opportunity to file
an amended complaint clarifying who he wishes to name as a defendant in this action and the
claim(s) that he brings against such defendants. An amended complaint completely replaces,
rather than supplements, an original complaint, and thus only the parties and claims that are
included in an amended complaint can be considered. For Plaintiff’s convenience, an amended
complaint form is attached to this order. 1 If Plaintiff does not amend his complaint within 30
days, the Court will screen the original complaint, under 28 U.S.C. § 1915(e)(2)(B), against the
defendants named therein.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket. Because Plaintiff indicates that he wishes to amend his complaint, the Court will
The Court also cautions Plaintiff that some of the defendants named in the original complaint
appear to be immune from suit and, if so, should not be included in an amended complaint. See,
e.g., United States v. Mitchell, 463 U.S. 206, 212 (1983) (United States cannot be sued without
its consent); Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (“[S]tate 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 . . . .”).
2
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allow 30 days before screening the complaint to permit Plaintiff an opportunity to file an
amended complaint. For Plaintiff’s convenience, an amended complaint form is attached to this
order. If Plaintiff does not amend his complaint within 30 days, the Court will screen the original
complaint under 28 U.S.C. § 1915(e)(2)(B).
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:

January 7, 2021
New York, New York
COLLEEN McMAHON
Chief United States District Judge

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U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

AMENDED

-against-

COMPLAINT
(Prisoner)
Do you want a jury trial?
☐ Yes
☐ No

Write the full name of each defendant. If you cannot fit the
names of all of the defendants in the space provided, please
write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The
names listed above must be identical to those contained in
Section IV.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

Case 1:20-cv-09502-CM Document 10 Filed 01/07/21 Page 5 of 9

I.

LEGAL BASIS FOR CLAIM

State below the federal legal basis for your claim, if known. This form is designed primarily for
prisoners challenging the constitutionality of their conditions of confinement; those claims are
often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a
“Bivens” action (against federal defendants).

☐ Violation of my federal constitutional rights
☐ Other:
II.

PLAINTIFF INFORMATION

Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name

Middle Initial

Last Name

State any other names (or different forms of your name) you have ever used, including any name
you have used in previously filing a lawsuit.
Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency
and the ID number (such as your DIN or NYSID) under which you were held)
Current Place of Detention
Institutional Address

County, City

III.

State

Zip Code

PRISONER STATUS

Indicate below whether you are a prisoner or other confined person:

☐
☐
☐
☐
☐

Pretrial detainee
Civilly committed detainee
Immigration detainee
Convicted and sentenced prisoner
Other:

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Case 1:20-cv-09502-CM Document 10 Filed 01/07/21 Page 6 of 9

IV.

DEFENDANT INFORMATION

To the best of your ability, provide the following information for each defendant. If the correct
information is not provided, it could delay or prevent service of the complaint on the defendant.
Make sure that the defendants listed below are identical to those listed in the caption. Attach
additional pages as necessary.
Defendant 1:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 3:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 4:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code
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V.

STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:
FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach
additional pages as necessary.

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Case 1:20-cv-09502-CM Document 10 Filed 01/07/21 Page 8 of 9

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical treatment,
if any, you required and received.

VI.

RELIEF

State briefly what money damages or other relief you want the court to order.

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Case 1:20-cv-09502-CM Document 10 Filed 01/07/21 Page 9 of 9

VII.

PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law
or by a nonfrivolous argument to change existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise
complies with the requirements of Federal Rule of Civil Procedure 11.
I understand that if I file three or more cases while I am a prisoner that are dismissed as
frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in
future cases.
I also understand that prisoners must exhaust administrative procedures before filing an action
in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be
dismissed if I have not exhausted administrative remedies as required.
I agree to provide the Clerk's Office with any changes to my address. I understand that my
failure to keep a current address on file with the Clerk's Office may result in the dismissal of my
case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated
First Name

Plaintiff’s Signature
Middle Initial

Last Name

Prison Address
County, City

State

Zip Code

Date on which I am delivering this complaint to prison authorities for mailing:

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