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HUGHES v. WILLIAMS

United States District Court, W.D. New York


June 15, 2005.

MAURICE HUGHES Plaintiff,
v.
MELVIN WILLIAMS, Superintendent, DR. SOHN, Physician, Fishkill Correctional Facility, NURSE SULLIVAN, DR. STORNELLI, DR. WALRATH and DEPARTMENT OF CORRECTIONAL SERVICES, Defendants.

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge

MEMORANDUM and ORDER

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. ยง 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.

  SO ORDERED.


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