Cummings v. John Doe OMH Provider
- Katherine Failla
- 1:23-cv-11184
- U.S. District Court · Southern District of New York
- 15
In Cummings v. John Doe OMH Provider, Judge Failla granted an extension and denied Cummings’s counsel request without prejudice while defendants were identified.
Najay Cummings, the New York City Law Department, James Cassar, Chelsea Whittaker, and the still-unidentified OMH provider are affected by the identification, amendment, service, and counsel-related directions.
What happened
In Cummings v. John Doe OMH Provider, the court had directed the New York City Law Department to identify the unnamed defendants connected to Cummings’s complaint. The Law Department identified James Cassar as the psychiatrist and Chelsea Whittaker as the pharmacist, but could not identify the unnamed OMH provider.
The court granted the Law Department’s request for more time to provide Whittaker’s service address. It directed Cummings to file an amended complaint naming Cassar, Whittaker, and any other identified defendants. The court also said it would screen the amended complaint and address service afterward.
Judge Katherine Polk Failla denied Cummings’s request for appointed volunteer counsel without prejudice to renewal after an amended complaint was filed. The court also certified that an appeal would not be taken in good faith and denied fee-free appeal status.
The detailed version
- Cummings v. John Doe OMH Provider · No. 1:23-cv-11184
- Katherine Failla
- May 14, 2024
Background
On March 14, 2024, the court ordered the New York City Law Department, acting for and as the agent of the New York City Department of Correction, to identify the unnamed defendants allegedly involved in the events described in Cummings’s complaint. The order gave the Law Department sixty days to provide the information to Cummings and the court.
In a letter filed May 13, 2024, the Law Department identified the unnamed psychiatrist as James Cassar. The letter stated that Cassar was employed by Correctional Health Services as a psychiatric nurse practitioner. It identified the unnamed pharmacist as Chelsea Whittaker, who was employed by Physician Affiliate Group of New York, Inc. as a pharmacy technician. The Law Department stated that it could not determine the identity of the unnamed OMH provider despite reviewing its records. It also requested three more weeks to determine Whittaker’s service address.
Request for appointed counsel
Cummings separately asked the court to appoint volunteer counsel. The court explained that federal law allows a court to request an attorney for a person who cannot afford one, but does not require courts to provide counsel in civil cases. The court found the request premature because the proper defendants were still being identified, after which the complaint would need to be amended and the defendants served.
Rulings and directions
The court granted the Law Department’s request for an adjournment of the deadlines in the earlier identification order. It directed the Law Department to file a service address for Whittaker by May 28, 2024. It directed Cummings to file an amended complaint naming Cassar, Whittaker, and any other defendants by June 27, 2024. The amended complaint would replace, rather than supplement, the original complaint.
The court denied Cummings’s request for appointed volunteer counsel without prejudice to renewal after Cummings filed an amended complaint. The court stated that it would screen the amended complaint and, if needed, direct the court clerk to provide the United States Marshals Service with documents and addresses needed for service.
The court directed the clerk to mail the order to the New York City Law Department and to Cummings, and to terminate the pending motions at docket entries 9 and 10. It also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and therefore denied fee-free appeal status. The order did not decide the merits of Cummings’s underlying claims.
Read the full 15-page opinion on CourtListener, the free public archive maintained by the Free Law Project.