Joseph v. Westchester County Department of Community Mental Health

Background

Thomas T. Joseph, who was not incarcerated and was representing himself, sent the court a December 9, 2020 letter asking what he needed to do to bring the litigation to a close. The court understood the letter as apparently asking how to advance the case, rather than how to end it. Because Joseph had paid the filing fee, he was not entitled to have federal marshals serve the summonses and complaint.

The court summarized its May 19, 2020 Order of Service. That earlier order dismissed all claims against the Westchester County Department of Community Mental Health because the department was not a suable entity. It also dismissed Joseph’s claims under the New York State Human Rights Law for lack of subject-matter jurisdiction, dismissed his claims under the New York City Human Rights Law because that law did not apply to alleged discriminatory acts outside New York City, and dismissed his Title VII claims against Thomas S. Poovappallil because Title VII does not impose individual liability.

The claims the earlier order left were: Title VII claims against Westchester County; Americans with Disabilities Act claims against Westchester County and Poovappallil; and Family and Medical Leave Act claims against Westchester County and Poovappallil. The court said some claims had been dismissed without prejudice, meaning Joseph could try to correct the problems by filing an amended complaint. He had not filed one within the 45-day period set by the earlier order.

Service and Further Instructions

The earlier order also directed Joseph to serve the defendants within 90 days after summonses were issued, or seek more time. Summonses were issued on May 22, 2020, but Joseph had not filed proof of service showing that he attempted service. The court noted that an information package mailed to him explained that, because he had not filed an application to proceed without paying filing fees, he had to obtain a service waiver from each defendant or serve each defendant himself. The package also referred him to Rule 4 of the Federal Rules of Civil Procedure.

Because Joseph was representing himself and his letter suggested that he might not have understood the earlier instructions, the court gave him another opportunity. If he intended to amend his complaint, he was directed to file the amended complaint within 45 days of the January 4, 2021 order. The court stated that failure to do so would result in dismissal of his New York City Human Rights Law claims and his Title VII claims against Poovappallil for failure to state a claim, and dismissal of his New York State Human Rights Law claims for lack of subject-matter jurisdiction.

The court also directed Joseph to serve the summonses on the defendants, or obtain waivers of service, within 90 days after the summonses were issued and to file proof of service. It directed him to consult the May 19 order, Rule 4, the mailed information package, and the court’s self-represented-litigant information, unless he lacked internet access. The clerk was directed to reissue summonses for Westchester County and Poovappallil and mail Joseph copies of the relevant materials.

Ruling

Judge Nelson S. Roman did not dismiss the remaining claims in this order. Instead, the court gave Joseph additional instructions and opportunities to amend and complete service. The court certified under 28 U.S.C. § 1915(a)(3) that an appeal of the order would not be taken in good faith and denied permission to appeal without paying the filing fee.