Donald v. Bennett et al

Filing 7

ORDER OF SERVICE: The Court dismisses Plaintiffs claims against the New York State Department of Corrections and Community Supervision. See 28 U.S.C. 1915(e)(2)(B)(iii). The Clerk of Court is instructed to: (1) issue summonses for Superintendent Bennett, Nurse Administrator P. Paige-Connier; Dr. Mikhail Gusman; and Nurse Practitioner Terrie Armbruster, complete the USM-285 forms with the address for Defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service; and (2) mail an information package to Plaintiff. SO ORDERED. (Signed by Judge Philip M. Halpern on 5/9/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CLAIRMONT DONALD,
Plaintiff,
-againstSUPERINTENDENT STACIE BENNETT;
NURSE ADMINISTRATOR P. PAIGECONNIER; NURSE PRACTITIONER TERRIE
ARMBRUSTER; DR. MIKHAIL GUSMAN;
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION,

24-CV-3144 (PMH)
ORDER OF SERVICE

Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff, who currently is incarcerated at Sullivan County Correctional Facility, brings this
action, pro se, under 42 U.S.C. § 1983, alleging that Defendants denied him adequate medical care.
By order dated April 26, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis
(“IFP”), that is, without prepayment of fees. 1
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, 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 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,

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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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, 474-75 (2d Cir. 2006) (internal quotation marks and
citations omitted) (emphasis in original).
DISCUSSION
A.

New York State Department of Corrections and Community Supervision (DOCCS)
The Eleventh Amendment bars from federal court all suits by private parties against a state

unless the state consents to such a suit or Congress has validly abrogated its immunity. See Bd. of
Trs. v. Garrett, 531 U.S. 356, 363-64 (2001); Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 98-100 (1984). A state’s immunity extends to state agencies such as DOCCS, which is an
arm of the State of New York. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Dube
v. State Univ. of New York, 900 F.2d 587, 594-95 (2d Cir. 1990).
Because neither the State of New York nor its agencies have consented to be sued in federal
court under 42 U.S.C. § 1983, and Congress has not abrogated the state’s immunity, see Trotman
v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977), Plaintiff’s claims against
DOCCS are dismissed as barred by the Eleventh Amendment. See 28 U.S.C. § 1915(e)(2)(B)(iii).
B.

Superintendent Bennett, Nurse Practitioners Paige-Connier and Armbruster, and
Dr. Gusman
Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on

assistance from the Court and the U.S. Marshals Service to effect service. 2 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

Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served
within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have effected
service until the Court reviewed the complaint and ordered that any summonses be issued. The Court
therefore extends the time to serve until 90 days after the date any summonses issue.

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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)).
To allow Plaintiff to effect service on Defendants Superintendent Bennett, Nurse
Administrator P. Paige-Connier, Nurse Practitioner Terrie Armbruster, and Dr. Mikhail Gusman
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 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 Defendants.
If the complaint is not served within 90 days after the date summonses are issued, 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).
Failure to timely request an extension of time for service may result in dismissal of this action
pursuant to Federal Rule of Civil Procedure 4(m).
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss
the action if Plaintiff fails to do so.
CONCLUSION
The Court dismisses Plaintiff’s claims against the New York State Department of
Corrections and Community Supervision. See 28 U.S.C. § 1915(e)(2)(B)(iii).
The Clerk of Court is instructed to: (1) issue summonses for Superintendent Bennett, Nurse
Administrator P. Paige-Connier; Dr. Mikhail Gusman; and Nurse Practitioner Terrie Armbruster,
complete the USM-285 forms with the address for Defendants, and deliver all documents
necessary to effect service to the U.S. Marshals Service; and (2) mail an information package to
Plaintiff.

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SO ORDERED.
Dated:

White Plains, New York
May 9, 2024
PHILIP M. HALPERN
United States District Judge

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DEFENDANT AND SERVICE ADDRESS FOR EACH DEFENDANT
Nurse Administrator P. Paige-Connier
Sullivan County Correctional Facility
325 Riverside Drive
Fallsburg, New York 12733-0116
Nurse Practitioner Terrie Armbruster
Sullivan County Correctional Facility
325 Riverside Drive
Fallsburg, New York 12733-0116
Dr. Mikhail Gusman
Sullivan County Correctional Facility
325 Riverside Drive
Fallsburg, New York 12733-0116
Superintendent Stacie Bennett
Sullivan County Correctional Facility
325 Riverside Drive
Fallsburg, New York 12733-0116