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BENNERSON v. CITY OF NEW YORK

April 28, 2004.

ALLAN BENNERSON, Plaintiff, -against- CITY OF NEW YORK, DEPARTMENT OF CORRECTION and CORRECTION OFFICERS MONTRA and CAMPBELL, Defendants


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

Allan Bennerson ("Bennerson") has brought this action pro se pursuant to 42 U.S.C. § 1983, alleging that he was physically assaulted during his incarceration at Rikers Island. Defendants City of New York and New York City Department of Correction (the "Municipal Defendants") move to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R. Civ. P., and pursuant to Rule 41(b), Fed.R. Civ. P., for failure to prosecute. For the reasons set forth below, the motion is granted and Bennerson is ordered to show cause no later than May 26, 2004, on submission, why the amended complaint should not be dismissed on that date without prejudice as to the remaining defendants.

 Prior Proceedings and Background

  On December 24, 2002, Bennerson filed a complaint raising claims pursuant to 42 U.S.C. § 1983 and alleging that he was physically assaulted by correction officers while incarcerated at Rikers Island. By an order bearing that same date, Bennerson was directed to file an amended complaint and advised that he "must show the existence of an officially adopted policy or custom that caused injury and a causal connection between that policy or custom and the deprivation of a constitutional right" in order to sustain a claim under 42 U.S.C. § 1983 against a municipal defendant. (Dec. 24, 2002 Order, at 2.) Bennerson filed an amended complaint on January 9, 2003. According to the allegations in the amended complaint, Bennerson was cleaning a bathroom and shower in his housing unit at Rikers Island on May 15, 2002, when a correction officer told him to drop the mop, place his hands behind his head, and walk to the front of the bathroom. Bennerson alleges that he complied and that the officer proceeded to threaten him verbally. An indeterminate number of other correction officers then entered the room, according to Bennerson, and surrounded him in a circle. An officer named "Montra" then allegedly punched him in the face, and he fell to the floor. While he was still on the floor, other correction officers allegedly proceeded to kick and punch him. Bennerson alleges that he was then handcuffed and dragged from the bathroom to the outside of the housing area where officers — including an officer wearing a name-tag labeled "Campbell" — continued to kick and punch him, and began to bang his head against the wall in the hallway "like a ball." According to the amended complaint, Bennerson was thereafter dragged to the facility hospital and placed in a cage. The amended complaint names as defendants the Municipal Defendants and Correction Officers Campbell ("Campbell") and Montra ("Montra").

  By a letter dated May 9, 2003, Corporation Counsel informed the Court that there were no correction officers named Montra at the Department of Correction and two correction officers with the name Campbell who worked at Rikers Island at the time of the alleged incident. Corporation Counsel's request to be relieved of responsibility to respond to the acknowledgments of service by mail on behalf of Correction Officers Campbell or Montra was granted on May 20, 2003.

  By a letter dated May 29, 2003, Corporation Counsel, on behalf of the Municipal Defendants, reported to the Court and Bennerson that, upon information and belief, three correction officers were in the area of the alleged incident on the date and time in question: Divine Calvin ("Calvin"), Bret Moleta ("Moleta"), and Steven Ryan ("Ryan"). By an order dated May 29, 2003, the complaint was amended to add as defendants the named officers. The same order specified that the named officers "must be served by plaintiff."

  The Municipal Defendants answered Bennerson's complaint on June 16, 2003, asserting as affirmative defenses, inter alia, that the amended complaint fails to state a claim upon which relief can be granted and that defendant New York City Department of Correction is not a suable entity.

  By a letter dated August 1, 2003, the Municipal Defendants, by their counsel, informed the Court and Bennerson that, upon information and belief, Calvin, Moleta and Ryan had yet to be served by Bennerson. The Municipal Defendants also stated that they were awaiting discovery responses and initial disclosures from Bennerson at that time.

  On September 29, 2003, Corporation Counsel wrote to Bennerson on behalf of the Municipal Defendants to make a settlement offer and to explain the Municipal Defendants' intent to move to dismiss the complaint should settlement not result. By that same letter, Corporation Counsel noted that Calvin, Moleta and Ryan had not been served with process and that, "inasmuch as the individually named defendants have not been served with process to date, they are not proper defendants in this action." (Letter from Jennifer A. Vasquez to Allan Bennerson, dated Sept. 29, 2003, at 1.)

  By a letter dated October 7, 2003, the Municipal Defendants reiterated their offer of settlement and informed Bennerson that, should their offer not be accepted by October 10, 2003, they were considering making a motion for summary judgment.

  By a letter dated November 25, 2003, Bennerson advised the Court of his release from prison and current address. On January 27, 2004, Bennerson was served with a notice of deposition and a copy of the September 29, 2003 letter to reiterate the Municipal Defendants' intention to move to dismiss. Bennerson did not appear for deposition on February 4, 2004, the date set in the notice of deposition. The Municipal Defendants filed this motion to dismiss on February 13, 2004. No opposition has been received from Bennerson, and the motion was marked fully submitted on March 24, 2004.

  I. Motion to Dismiss under Fed.R.Civ.P. 12(b)(6)

 Standard

  The Municipal Defendants have moved to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that defendant New York City Department of Correction is a non-suable entity and that Bennerson has not adequately pled a ...


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