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ADAMS v. CHIEF OF SEC. OPERATIONS

May 26, 1997

ALFRED ADAMS, JR., Plaintiff, against CHIEF OF SECURITY OPERATIONS, RONALD GALLETTA; NEW YORK CITY DEPARTMENT OF CORRECTION; O.S.U. CAPTAIN JOE RODRIGUEZ, SHIELD # 195; WARDEN E. HEARD, BRONX HOUSE OF DETENTION; and WARDEN LASSER, BROOKLYN HOUSE OF DETENTION, Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff, Alfred Adams, Jr., proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 seeking compensatory damages for alleged violations of his civil rights while he was a pretrial detainee at the Brooklyn and Bronx Houses of Detention. The defendants now move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint on the grounds that it fails to state a claim upon which relief can be granted. For the reasons explained below, the defendants' motion is granted in part and denied in part.

 I.

 On a motion to dismiss, the factual allegations of the complaint are to be accepted as true and all reasonable inferences are construed in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994). A court should dismiss a complaint only "if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99, (1957)). Where a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a motion to dismiss. See Knowles v. New York City Department of Corrections, 904 F. Supp. 217, 219 (S.D.N.Y. 1995); Andujar v. McClellan, 1996 U.S. Dist. LEXIS 15401, *3, 1996 WL 601522, at *1 (S.D.N.Y. Oct. 21, 1996). Accordingly, the following facts are accepted as true for purposes of this motion.

 On November 24, 1995, the plaintiff was placed in Maximum Security at the Brooklyn House of Detention under a Central Monitor Case classification based upon a U.S. Marshal detainer that indicated he was an escape risk. At the time of the plaintiff's confinement in Maximum Security, the New York City Department of Correction ("Department of Correction") had been informed that there were no longer charges or a detainer from the U.S. Marshal against the plaintiff. On February 15, 1996, the plaintiff was transferred to the Bronx House of Detention and placed in Maximum Security. On March 15, 1996, Officer Diaz # 3838 at the Brooklyn House of Detention showed the plaintiff a letter from the U.S. Marshal that indicated that there was no longer a detainer against the plaintiff.

 II.

 Defendant Department of Correction argues that the complaint should be dismissed against it because it is not a suable entity. The New York City Charter provides that "all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter Ch. 17 § 396. Thus where a plaintiff has named the Department of Corrections as a defendant, he has sued a non-suable entity. See Campbell v. Department of Correction of New York City, 1996 U.S. Dist. LEXIS 2021, *2, 1996 WL 79869, at *1 (S.D.N.Y. 1996); see also East Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992); Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992); Martin v. City of New York, 627 F. Supp. 892, 894 n.2 (E.D.N.Y. 1985).

 Accordingly, the complaint is dismissed against defendant New York City Department of Correction. The dismissal is without prejudice to the ability of the plaintiff to sue a proper defendant if he can make the necessary allegations to show such liability. *fn1"

 III.

 Defendants Warden Heard and Warden Lasser argue that the complaint should be dismissed against them because there are no allegations that they were personally involved in the alleged constitutional violations. "It is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Personal involvement for purposes of a § 1983 action means "direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates." Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Wright, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). A complaint is fatally defective on its face if it fails to allege that the defendants were directly and personally responsible for the purported unlawful conduct. See Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir. 1989), cert. denied, 496 U.S. 941, 110 L. Ed. 2d 671, 110 S. Ct. 3225 (1990); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987); Smiley v. Davis, 1988 U.S. Dist. LEXIS 7119, *4, 1988 WL 78306, at *2 (S.D.N.Y. 1988).

 In this case, although the plaintiff makes various allegations on this motion, in his complaint, the plaintiff alleges only that Warden Heard is responsible for the overall operation of the Bronx House of Detention, and that Warden Lasser is responsible for the overall operation of the Brooklyn House of Detention. The complaint is therefore fatally defective on its face with respect to claims against defendants Warden Heard and Warden Lasser.

 Accordingly, the complaint is dismissed against defendant Warden Heard and Warden Lasser without prejudice to the ...


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