On February 28, 2005, plaintiff, a former inmate at the
Fishkill Correctional Facility and Willard Drug Treatment Campus
filed a complaint and application to proceed in forma pauperis
with the Untied States District Court for the Northern District
of New York. On March 17, 2005, the Northern District of New York
(Hon. Lawrence E. Kahn) denied plaintiff's application to proceed
in forma pauperis as incomplete and directed him to either pay
the filing fee or submit a new application along with an amended
complaint. On April 15, 2005, plaintiff filed a new application
and an amended complaint. On May 24, 2005, District Judge Kahn
filed an order dismissing defendant New York State Division of
Parole and transferring the amended complaint to this Court
because the allegations of deliberate indifference to plaintiff's
serious medical need and inadequate medical care arose, in part,
at the Willard Drug Treatment Campus, which is located within the
Western District of New York. The remaining allegations arose
prior to plaintiff's initial release on parole and occurred at
the Fishkill Correctional Facility. Plaintiff's amended complaint against defendant Department of
Correctional Services ("DOCS") must be dismissed with prejudice,
pursuant to 28 U.S.C. § 1915(e)(2)(B),*fn1 because DOCS, as
an agency of the State of New York, is immune from suit pursuant
to the Eleventh Amendment. See Kentucky v. Graham,
473 U.S. 159, 166 (1985); see also Posr v. Court Officer Shield No. 207,
180 F.3d 409, 414 (2d Cir. 1999) ("An official arm of the state,"
such as state agencies, "enjoys the same Eleventh Amendment immunity from
suit in federal court as is enjoyed by the state itself.").
Accordingly, plaintiff's request to proceed as a poor person is
hereby granted and the amended complaint against the Department
of Correctional Services is dismissed with prejudice and the
Clerk of the Court is directed to terminate said defendant as a
party to this action.
The Clerk of the Court is directed to file plaintiff's papers,
and to cause the United States Marshal to serve copies of the
Summons, Amended Complaint, this Order and the remaining
documents forwarded to this Court from the Clerk of the Northern
District of New York (Docket No. 7) upon the remaining
defendants, Melvin Williams, Dr. Sohn, Nurse Sullivan, Dr.
Stornelli and Dr. Walrath, without plaintiff's payment therefor,
unpaid fees to be recoverable if this action terminates by
monetary award in plaintiff's favor.