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THOMAS v. WESTCHESTER COUNTY DEP'T OF CORRECTIONS

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


March 13, 1997

DACIUS THOMAS, Plaintiff, against WESTCHESTER COUNTY DEPARTMENT OF CORRECTIONS, et al., Defendants.

The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Jed S. Rakoff, United States District Judge:

 For the reasons set forth below, I recommend that the Court sua sponte dismiss pro se plaintiff Dacius Thomas' claim against Westchester County Department of Corrections for failure to state a claim on which relief may be granted, pursuant to the Prison Litigation Reform Act.

 FACTS

 The pro se complaint alleges that Corrections Officer Slensby punched, kicked and beat Mr. Thomas on October 26, 1996, causing serious injury, mental anguish and emotional distress. The complaint seeks $ 2 million in damages against defendants jointly and severally, and an additional $ 1 million in punitive damages. The complaint contains no allegations as to Westchester County Department of Corrections; the only reference to it is in the caption (and indirectly by the reference to "defendants" in the relief sections).

 The complaint is dated December 19, 1996 and was received by the Court's Pro Se Office on January 6, 1997. See Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988) (pro se complaint deemed filed when received by the pro se office); Wright v. Nunez, 950 F. Supp. 610, 611 (S.D.N.Y. 1997) (Peck, M.J.) (same); McCray v. Kralik, 1996 U.S. Dist. LEXIS 9474, 1996 WL 378273 at *2 (S.D.N.Y. July 1, 1996) (Peck, M.J.) (same).

 ANALYSIS

 The Prison Litigation Reform Act (the "PLRA" or the "Act"), which was signed into law by President Clinton on April 26, 1996, significantly altered a prisoner's right to bring civil actions in forma pauperis. The PLRA amended 28 U.S.C. § 1915 to require the Court sua sponte to dismiss the case at any time if the action or any claim "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e) (as amended); see also 28 U.S.C. § 1915A.

 Thomas' complaint is totally silent as to defendant Westchester County Department of Corrections. The complaint therefore fails to state a claim as to that defendant. Plaintiff Thomas should be permitted to amend his complaint if he can assert facts to state a claim against the Westchester County Department of Corrections. See, e.g., Wright v. Nunez, 950 F. Supp. at 612; McCray v. Kralik, 1996 U.S. Dist. LEXIS 9474, 1996 WL 378273 at *4 (citing Soto v. Walker, 44 F.3d 169, 173 & n.5 (2d Cir. 1995) (citing Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991))).

 CONCLUSION

 For the reasons set forth above, I recommend that the Court sua sponte dismiss the complaint against defendant Westchester County Department of Corrections for failure to state a claim and as frivolous, without prejudice to Thomas filing an amended complaint within 30 days.

 Pursuant to the PLRA, defendant Correction Officer Slensby is directed to respond to the complaint (by answer or motion) after he is served. Plaintiff Thomas is to serve this Report and Recommendation on defendant Slensby along with the summons and complaint (or on their counsel if defendants have already been served). Plaintiff Thomas is reminded that, pursuant to Federal Rule of Civil Procedure 4(m), he must arrange with the Marshals to have the summons and complaint served within 120 days of its initial filing with the Court.

 FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 750, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Services, 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

 DATED: New York, New York

 March 13, 1997

 Respectfully submitted,

 Andrew J. Peck

 United States Magistrate Judge

19970313

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