Opinion
22 Civ. 1769 (ER)
03-07-2022
MARK A. GARNES, Plaintiff, v. CITY OF NEW YORK; NEW YORK CITY POLICE DEPARTMENT; HIGHWAY PATROLMAN NIKODOMUS PETRONE, SHIELD NO. 9873, Defendants.
ORDER OF SERVICE
EDGARDO RAMOS, UNITED STATES DISTRICT JUDGE.
Plaintiff, who is appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. The Court also construes the complaint as asserting claims under state law. By order dated March 3, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, to waive the filing fees.
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 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, 47475 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
DISCUSSION
A. Claims against the New York City Police Department
Plaintiff's claims against the New York City Police Department 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.”). The Court therefore dismisses Plaintiff's claims against the New York City Police Department. See 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Service on the City of New York and Petrone
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 summonses and the complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the 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 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 responsibility to request an extension of time for service); see also Murray v. Pataki, 378 Fed.Appx. 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 the City of New York and Nikodomus Petrone, Shield #9873, 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 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 the defendants.
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 City Police Department. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Clerk of Court is further instructed to issue summonses for the City of New York and Petrone, complete the USM-285 forms with the addresses for these defendants, 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. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package.
SO ORDERED.
DEFENDANTS AND SERVICE ADDRESSES
1. The City of New York
100 Church Street
New York, NY 10007
2. Highway Patrolman Nikodomus Petrone, Shield #9873 1 Police Plaza
New York, NY 10038