McMillian v. Colon

Background

Nasir McMillian, who is incarcerated at Otisville Correctional Facility and is proceeding without a lawyer, brought this action under 42 U.S.C. § 1983. He alleges that defendants assaulted him on January 2, 2024, at Sing Sing Correctional Facility. The court had previously granted permission to proceed without prepaying the filing fee. The opinion notes that prisoners granted this permission still must pay the full filing fee over time.

Screening and service

Under the statutes governing screening of complaints filed by prisoners who proceed without prepaying fees, the court must dismiss claims that are frivolous, malicious, inadequately pleaded, or seek relief from an immune defendant. The court also must dismiss claims when it lacks subject-matter jurisdiction. Although the plaintiff is representing himself, the court must read his filings liberally and interpret them to raise the strongest claims they reasonably suggest.

The court ordered service through the U.S. Marshals Service on B. Colon, P. Delovic, J. Rodriguez, J. Fransco, Brooks, and Ulerio. The Clerk of Court was directed to issue summonses, complete the service forms, and provide the necessary papers to the Marshals Service. The court extended the service period to 90 days after the summonses issue. The order also states that Local Civil Rule 33.2 applies, requiring the defendants in this prisoner case to respond to specified interrogatories and document requests within 120 days after service.

Claims against Jofsen

The court dismissed the claims against Jofsen for failure to state a claim. McMillian listed Jofsen in the complaint’s caption but did not allege facts showing Jofsen’s personal involvement in the alleged assault. The court explained that a defendant cannot be held liable under § 1983 merely because that defendant supervises or employs someone who allegedly violated the plaintiff’s rights. The court granted McMillian 30 days to file an amended complaint concerning these claims.

Claims against Sing Sing Correctional Facility

The court dismissed the claims against Sing Sing Correctional Facility. It concluded that a correctional facility is not a “person” that can be sued under § 1983. The court also stated that the facility, as a state correctional facility, is protected by the Eleventh Amendment because New York had not waived its immunity and Congress had not removed that immunity through § 1983.

Disposition

Judge Nelson S. Roman ordered service on the six named defendants, applied Local Civil Rule 33.2, dismissed the claims against Jofsen with 30 days’ leave to file an amended complaint, and dismissed the claims against Sing Sing Correctional Facility. The order did not resolve the merits of McMillian’s assault allegations against the defendants who are to be served.