Reshard v. City of New York Dept. of Correction et al

Filing 12

ORDER OF SERVICE: For the forgoing reasons, the Court dismisses Plaintiff's claims against the DOC. See 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is respectfully directed to add the City of New York as a Defendant under Federal Ru le of Civil Procedure 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 Defendants the City of New York and Cap tain Decosta waive service of summons. The Clerk of Court is directed to mail a copy of this Order and the complaint to the New York City Law Department at: 100 Church Street, New York, NY 10007. Local Civil Rule 33.2 applies to this case. The Cler k of Court is directed to mail an information package to Plaintiff. SO ORDERED. ( Waiver of Service due by 10/24/2024.), City of New York added. City of New York Dept. of Correction terminated. (Signed by Judge Mary Kay Vyskocil on 9/24/2024) (tg)

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 9/24/2024

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KEVIN L. RESHARD,
Plaintiff,
-against-

24-CV-2531 (MKV)

CITY OF NEW YORK DEPT OF
CORRECTIONS; CAPTAIN DECOSTA;
OFFICER JANE DOE #1; OFFICER JANE
DOE #2,

ORDER OF SERVICE

Defendants.
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff, who currently is incarcerated at the Metropolitan Detention Center in Brooklyn,
New York, brings this action, pro se, under 42 U.S.C. § 1983, alleging that while he was detained
on Rikers Island, Defendants violated his constitutional rights. By order dated September 4, 2024,
Chief Judge Laura Taylor Swain granted Plaintiff’s request to proceed in forma pauperis (“IFP”),
that is, without prepayment of fees. 1 As set forth in this order, the Court (1) dismisses the claims
against the New York City Department of Correction (“DOC”) because it is not an entity that can
be sued; (2) substitutes the City of New York for DOC, under Rule 21 of the Federal Rules of Civil
Procedure; (3) asks the City of New York and Captain Decosta to waive service of summons; (4)
directs the New York City Law Department to identify Jane Doe #1 so that she may be served; and
(5) applies Local Civil Rule 33.2 to this action.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or portion thereof, that is frivolous or malicious,
fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed
IFP. See 28 U.S.C. § 1915(b)(1).

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who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). 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]
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).
DISCUSSION
A.

New York City Department of Correction
Plaintiff’s claims against the DOC 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.”).
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 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.

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B.

Waiver of Service
The Clerk of Court is respectfully directed to notify the DOC and the New York City Law

Department of this order. The Court requests that the City of New York and Captain Decosta waive
service of summons.
C.

Jane Doe #1
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court

in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies
sufficient information to permit the DOC to identify Jane Doe #1. IT IS THEREFORE ORDERED
that the New York City Law Department, which is the attorney for and agent of the DOC, must
ascertain the identity and badge number of Jane Doe #1 and the address where this defendant may
be served. 2 The Law Department must provide this information to Plaintiff and the Court within
60 days of the date of this order.
Within 30 days of receiving this information, the Court will direct the Clerk of Court to
add the real name of Jane Doe #1 to the caption of the complaint and issue an order asking this
defendant to waive service and notifying her that Local Civil Rule 33.2 applies to this action.
D.

Local Civil Rule 33.2
Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to

respond to specific, court-ordered discovery requests, applies to this action. Those discovery
requests are available on the Court’s website under “Forms” and are titled “Plaintiff’s Local Civil
Rule 33.2 Interrogatories and Requests for Production of Documents.” IT IS ORDERED that

If Jane Doe #1 is a current or former DOC employee or official, the Law Department should note in the response to
this order that an electronic request for a waiver of service can be made under the e-service agreement for cases
involving DOC defendants, rather than by personal service at a DOC facility. If Jane Doe #1 is not a current or former
DOC employee or official, but otherwise works or worked at a DOC facility, the Law Department must provide a
residential address where the individual may be served.

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within 120 days of service of the complaint, the named Defendants must serve responses to these
standard discovery requests. In their responses, the named Defendants must quote each request
verbatim. 3
CONCLUSION
For the forgoing reasons, the Court dismisses Plaintiff=s claims against the DOC. See 28
U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is respectfully directed to add the City of New
York as a Defendant under Federal Rule of Civil Procedure 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 Defendants the City of New York and Captain Decosta waive service of summons.
The Clerk of Court is directed to mail a copy of this Order and the complaint to the New
York City Law Department at: 100 Church Street, New York, NY 10007.
Local Civil Rule 33.2 applies to this case.
The Clerk of Court is directed to mail an information package to Plaintiff.
SO ORDERED.
Dated: September 24, 2024
New York, New York
MARY KAY VYSKOCIL
United States District Judge

If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to
the website, Plaintiff may request them from the Pro Se Intake Unit.

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