Jones v. Westchester County Department of Corrections et al

Filing 6

ORDER OF SERVICE: The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. The Court dismisses Plaintiff's claims against the Westchester County Department of Corrections. See 28 U. S.C. § 1915(e)(2)(B)(ii) The Clerk of Court is directed to substitute Westchester County as a Defendant under Fed. R. Civ. P. 21. The Clerk of Court is further instructed to issues summonses, complete the USM-285 forms with the addresses for Westchester County; Joseph K. Spano, Commissioner of Corrections; Herbert Stoddard, Physician Well Path Rep.; and George Latimer, County Executive of Department of Corrections, and deliver all documents necessary to effect service to the U.S . Marshals Service. 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. 4 38, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED (Signed by Judge Philip M. Halpern on 2/16/2021) (ks) Party Westchester County and Westchester County added. Party Westchester County Department of Corrections terminated. Transmission to Pro Se Assistants for processing. Modified on 2/16/2021 (ks).

Case 7:20-cv-08542-PMH Document 6 Filed 02/16/21 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEVEN A. JONES, JR.,
Plaintiff,
-againstWESTCHESTER COUNTY DEPARTMENT OF
CORRECTIONS; JOSEPH K. SPANO,
COMMISSIONER OF CORRETIONS;
HERBERT STODDARD, PHYSICIAN – WELL
PATH REP.; GEORGE LATIMER, COUNTY
EXECUTIVE OF DEPARTMENT OF
CORRECTIONS,

ORDER OF SERVICE
20-CV-8542 (PMH)

Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff, currently detained by Westchester County Department of Corrections, brings this
pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights.
By order dated February 4, 2021, the Court granted Plaintiff’s request to proceed without
prepayment of fees, that is, in forma pauperis (IFP). 1
STANDARD OF REVIEW
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.

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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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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). But the
“special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim,
pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which
requires a complaint to make a short and plain statement showing that the pleader is entitled to
relief.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to
state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court
to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the
complaint, the Court must accept all well-pled factual allegations as true. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the
elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at
555. After separating legal conclusions from well-pled factual allegations, the Court must
determine whether those facts make it plausible – not merely possible – that the pleader is entitled
to relief. Id.
ANALYSIS
A.

Westchester County Department of Corrections
Plaintiff’s claims against the Westchester County Department of Corrections must be

dismissed because city agencies or departments do not have the capacity to be sued under New
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York law. See 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.”).
In light of Plaintiff’s pro se status and clear intention to assert claims against Westchester
County, the Court construes the complaint as asserting claims against Westchester County, and
directs the Clerk of Court to amend the caption of this action to replace the Westchester County
Department of Corrections with Westchester County. See Fed. R. Civ. P. 21. This amendment is
without prejudice to any defenses Westchester County may wish to assert.
B.

Service on Westchester County; Joseph K. Spano, Commissioner of Corrections;
Herbert Stoddard, Physician – Well Path Rep.; and George Latimer, County
Executive of Department of Corrections
Because Plaintiff has been granted permission to proceed IFP, Plaintiff is entitled to rely

on the Court and the U.S. Marshals Service to effect service. 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 the summons and complaint be served within 90 days of
the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summonses
and complaint until the Court reviewed the complaint and ordered that summonses be issued. The
Court therefore extends the time to serve until 90 days after the date the summonses are issued. If
the complaint is not served 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
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responsibility to request an extension of time for service); see also Murray v. Pataki, 378 F. App’x
50, 52 (2d Cir. 2010) (“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 Westchester County; Joseph K. Spano,
Commissioner of Corrections; Herbert Stoddard, Physician – Well Path Rep.; and George Latimer,
County Executive of Department of Corrections 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 (“USM285 form”) for each of these Defendants. The Clerk of Court is further instructed to issue
summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals
Service to effect service upon these Defendants.
Plaintiff must notify the Court in writing if Plaintiff’s address changes, and the Court may
dismiss the action if Plaintiff fails to do so.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an
information package.
The Court dismisses Plaintiff’s claims against the Westchester County Department of
Corrections. See 28 U.S.C. § 1915(e)(2)(B)(ii) The Clerk of Court is directed to substitute
Westchester County as a Defendant under Fed. R. Civ. P. 21.
The Clerk of Court is further instructed to issues summonses, complete the USM-285 forms
with the addresses for Westchester County; Joseph K. Spano, Commissioner of Corrections;
Herbert Stoddard, Physician – Well Path Rep.; and George Latimer, County Executive of
Department of Corrections, and deliver all documents necessary to effect service to the U.S.
Marshals Service.
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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:

White Plains, New York
February 16, 2021
PHILIP M. HALPERN
United States District Judge

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DEFENDANTS AND SERVICE ADDRESSES
Westchester County
148 Martine Avenue
White Plains, New York 10601
Joseph K. Spano,
Commissioner of Corrections
Westchester County Department of Corrections
10 Woods Road
Valhalla, New York 10595
Herbert Stoddard
Physician – Well Path Rep.
Westchester County Department of Corrections
10 Woods Road
Valhalla, New York 10595
George Latimer
County Executive of Department of Corrections
148 Martine Avenue
White Plains, New York 10601

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