Hermo v. The City of New York

Background

Anthony Hermo, representing himself, sued the City of New York, the New York City Department of Correction (DOC), and Laura Mello, identified as a DOC employee. He invoked federal-question jurisdiction. The court had previously allowed him to proceed without prepaying filing fees.

The complaint alleged that Hermo took an unidentified examination on an unspecified date. He stated that he passed the written, physical, and drug portions but failed the psychological portion. He also alleged that an unnamed doctor who administered or profiled the examination knew about his learning disability and mental illness. The complaint sought unspecified relief.

Court’s analysis

The court applied the screening standard for complaints filed by people allowed to proceed without prepaying fees. It explained that such a complaint must be dismissed if it is frivolous, malicious, fails to state a legally sufficient claim, seeks money from an immune defendant, or is within a case the court has no power to hear. The court also explained that a complaint must provide enough factual detail to make a claim plausible, not merely possible.

The court held that the DOC could not be sued because a New York City agency generally is not a separate suable entity. The claims against the DOC therefore had to be dismissed.

As to the City and Laura Mello, the court treated the claims as arising under 42 U.S.C. § 1983, a federal law allowing claims for violations of federal rights by people acting under state authority. For a claim against the City, Hermo also had to allege that a city policy, custom, or practice caused the violation. The court found that the complaint did not identify who administered the test, why Hermo took it, or facts showing that any defendant violated his rights. The court was inclined to dismiss for failure to state a claim but could not determine that amendment would be futile because Hermo alleged that state actors failed to consider his disabilities during a test.

Rulings and required next steps

The court granted Hermo leave to file an amended complaint within 30 days. The amended complaint had to replace, rather than supplement, the original complaint and include the relevant facts, defendants’ actions or omissions, dates and locations, alleged injuries, and requested relief. The court warned that if Hermo did not comply and could not show good cause, the complaint would be dismissed for failure to state a claim. No summons would issue at that time.

The court denied Hermo’s request for the court to seek pro bono counsel, meaning free representation, without prejudice to renewal later. It also certified that an appeal would not be taken in good faith and denied permission to proceed without prepaying fees for an appeal. Chief Judge Colleen McMahon directed the Clerk to assign the matter to her docket, mail the order to Hermo, and record service.