Deans v. Cimorelli et al

Filing 28

ORDER: Plaintiff is directed to submit a completed in forma pauperis application and is granted leave to file a second amended complaint pursuant to this Order by June 21, 2022. Plaintiff's requests for the U.S. Marshals to effect service ( ECF No. 25) and for a Valentin Order (ECF No. 26) are denied without prejudice, and the Court's previous Orders to Show Cause (ECF Nos. 16 & 19) are withdrawn. The Clerk of Court is directed to dismiss Orange County Jail Medical Unit as a defendant, mail a copy of this Order to the pro se plaintiff, and show service on the docket. ( Amended Pleadings due by 6/21/2022.) (Signed by Judge Nelson Stephen Roman on 4/21/2022) (ate)

Case 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
4/21/2022

TASHAY DAVID DEANS,
Plaintiff

18-CV-02576 (NSR)

-against-

ORDER

SGT. CIMORELLI, et al,
Defendants.
NELSON S. ROMÁN, United States District Judge:
Plaintiff Tashay David Deans (“Plaintiff”) filed suit on March 22, 2018 against the Orange
County Jail Medical Unit and several medical professionals after he experienced an asthma attack
and styes in his eyes while incarcerated. (ECF No. 2.) On June 22, 2018, the case was reassigned
to this Court. On June 25, 2018, the Court issued an Order of Service directing the Orange County
Law Department identify the nurses and doctors who treated Plaintiff as discussed in the
Complaint and directing Plaintiff to file an amended complaint. (ECF No. 7.) On August 23,
2018, a representative from the Orange County Law Department filed a letter identifying the nurses
and doctors pursuant to the Court’s Order. (ECF No. 9.) On October 22, 2018, Plaintiff filed an
Amended Complaint.

(ECF No. 12.)

Plaintiff has now filed requests to have the U.S.

Marshals Service effect service, a Valentin Order, and a proposed order to show cause. (ECF
Nos. 25, 26 & 27.)
DISCUSSION
I.

OCJ Medical Unit
Plaintiff’s claims against the Orange County Jail Medical Unit must be dismissed because

city agencies or departments do not have the capacity to be sued under New York law. See

Case 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 2 of 11

Omnipoint Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) (“In
New York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains, 185
F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law, departments which are merely
administrative arms of a municipality do not have a legal identity separate and apart from the
municipality and cannot sue or be sued.”); see also N.Y. Gen. Mun. Law § 2 (“The term ‘municipal
corporation,’ as used in this chapter, includes only a county, town, city and village.”). Instead,
Plaintiff may file claims against Orange County pursuant to Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978). Therefore, the Court will grant Plaintiff leave to file a second amended
complaint that includes a Monell claim against Orange County. The second amended complaint
will replace, not supplement, the original complaint. An amended complaint form is also attached
to this Order. Once Plaintiff has filed the second amended complaint, the Court will, if necessary,
issue an order directing the Clerk of Court to issue a summons as to each named defendant.
II.

U.S. Marshals Service
Plaintiff is requesting the Court direct the U.S. Marshals Service effect service. However,

Plaintiff has not been granted in forma pauperis status. 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)). Therefore, the Court directs Plaintiff to submit
the application attached to this Order to apply for in forma pauperis status. Plaintiff’s request is
denied without prejudice to renew upon the Court’s receipt and approval of Plaintiff’s in forma
pauperis application.
III.

Valentin Order
Plaintiff is requesting a Valentin Order directing Orange County identify seven persons

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Case 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 3 of 11

and entities. However, 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). None of the listed
persons or entities are defendants, and therefore Plaintiff’s request is denied.
IV.

Order to Show Cause
Lastly, Plaintiff filed a proposed order to show cause. (ECF No. 27.) Construed liberally,

this appears to be a response to the Court’s Orders to Show cause directing the Plaintiff to respond
in writing why his claims against Defendants should not be dismissed with prejudice for want of
prosecution pursuant to Fed R. Civ. P. 41(b). (ECF Nos. 16 & 19.) The Court’s Orders to Show
Cause are deemed withdrawn.
CONCLUSION
Plaintiff is directed to submit a completed in forma pauperis application and is granted
leave to file a second amended complaint pursuant to this Order by June 21, 2022.
Plaintiff’s requests for the U.S. Marshals to effect service (ECF No. 25) and for a Valentin Order
(ECF No. 26) are denied without prejudice, and the Court’s previous Orders to Show Cause
(ECF Nos. 16 & 19) are withdrawn. The Clerk of Court is directed to dismiss Orange County
Jail Medical Unit as a defendant, mail a copy of this Order to the pro se plaintiff, and show
service on the docket.
Dated:

April 21, 2022
White Plains, New York

SO ORDERED:
________________________________
NELSON S. ROMÁN
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

(full name of the plaintiff or petitioner applying (each person
must submit a separate application))

-against-

CV

(

) (

)

(Provide docket number, if available; if filing this with
your complaint, you will not yet have a docket number.)

(full name(s) of the defendant(s)/respondent(s))

APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS
I am a plaintiff/petitioner in this case and declare that I am unable to pay the costs of these proceedings
and I believe that I am entitled to the relief requested in this action. In support of this application to
proceed in forma pauperis (IFP) (without prepaying fees or costs), I declare that the responses below are
true:
1.

Are you incarcerated?

Yes

No

(If “No,” go to Question 2.)

I am being held at:
Do you receive any payment from this institution?

Yes

No

Monthly amount:
If I am a prisoner, see 28 U.S.C. § 1915(h), I have attached to this document a “Prisoner Authorization”
directing the facility where I am incarcerated to deduct the filing fee from my account in installments
and to send to the Court certified copies of my account statements for the past six months. See 28
U.S.C. § 1915(a)(2), (b). I understand that this means that I will be required to pay the full filing fee.
2.

Are you presently employed?

Yes

No

If “yes,” my employer’s name and address are:
Gross monthly pay or wages:
If “no,” what was your last date of employment?
Gross monthly wages at the time:
3.

In addition to your income stated above (which you should not repeat here), have you or anyone else
living at the same residence as you received more than $200 in the past 12 months from any of the
following sources? Check all that apply.
(a) Business, profession, or other self-employment
(b) Rent payments, interest, or dividends

SDNY Rev: 8/5/2015

Yes
Yes

No
No

Case 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 5 of 11

(c) Pension, annuity, or life insurance payments

Yes

No

(d) Disability or worker’s compensation payments

Yes

No

(e) Gifts or inheritances
(f) Any other public benefits (unemployment, social security,
food stamps, veteran’s, etc.)
(g) Any other sources

Yes

No

Yes

No

Yes

No

If you answered “Yes” to any question above, describe below or on separate pages each source of
money and state the amount that you received and what you expect to receive in the future.

If you answered “No” to all of the questions above, explain how you are paying your expenses:

4.

How much money do you have in cash or in a checking, savings, or inmate account?

5.

Do you own any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other
financial instrument or thing of value, including any item of value held in someone else’s name? If so,
describe the property and its approximate value:

6.

Do you have any housing, transportation, utilities, or loan payments, or other regular monthly
expenses? If so, describe and provide the amount of the monthly expense:

7.

List all people who are dependent on you for support, your relationship with each person, and how
much you contribute to their support (only provide initials for minors under 18):

8. Do you have any debts or financial obligations not described above? If so, describe the amounts owed
and to whom they are payable:

Declaration: I declare under penalty of perjury that the above information is true. I understand that a false
statement may result in a dismissal of my claims.
Dated

Signature

Name (Last, First, MI)

Prison Identification # (if incarcerated)

Address
Telephone Number

City

State
E-mail Address (if available)

IFP Application, page 2

Zip Code

Case 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 6 of 11

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.

SECOND 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 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 7 of 11

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 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 8 of 11

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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Case 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 9 of 11

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 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 10 of 11

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 7:18-cv-02576-NSR Document 28 Filed 04/21/22 Page 11 of 11

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:

Page 6