The opinion of the court was delivered by: Glasser, United States Senior District Judge
Defendant New York Police Department ("NYPD") moves the Court pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss plaintiff Kathleen Maier's claims against it under 42 U.S.C. § 1983 and New York state law. The Court grants the NYPD's motion because it is not a suable entity. Further, the Court dismisses the plaintiff's claims against the remaining defendants for failure to prosecute.
On December 18, 2008, plaintiff Kathleen Maier filed a complaint (the "Complaint") against the NYPD, a Detective Vizcarrondo, NYPD officers identified as John Does 1-10, the New York City Department of Corrections, the Warden of Rikers Island Prison and Department of Corrections officers identified as John and Jane Does 11-20.
The Complaint alleged that the plaintiff witnessed police misconduct in the course of a drug arrest and voiced her disapproval to the police involved. Those police then arrested the plaintiff, searching her person, calling her derogatory names and treating her roughly in the process. A container of prescription medication was found on the plaintiff's person. She was subsequently arrested for drug possession and held at Rikers Island prison where she was denied her prescription medication and medical care while she suffered from stomach pains and was exposed to Hepatitis A.
The Complaint brings causes of action pursuant to 42 U.S.C. § 1983 and state law. The Complaint alleges that that the NYPD and its officers violated the plaintiff's First, Fourth and Fourteenth Amendment rights, and further alleges defamation, intentional infliction of emotional distress, assault, battery, false arrest, false imprisonment, malicious prosecution, conversion, negligent supervision, negligence and denial of equal protection of the law.
After the filing of the Complaint, the docket reflects no further activity by the plaintiff in the case. On April 21, Magistrate Judge James Orenstein ordered the following:
No later than May 21, 2009, one of the following events must occur: (a) each defendant must file an answer, (b) the parties must file a stipulation extending the defendants' time to answer, or (c) the plaintiff must file a motion for the entry of a notation of default. If none of the preceding events occurs by the deadline set forth above, I will deem the plaintiff to have abandoned the case and will promptly file a Report and Recommendation urging the assigned District Judge to dismiss the case for failure to prosecute. (Docket #2).
Although proof of service was not submitted to the Court, the NYPD states in its motion that it was served with the summons and Complaint on or about April 16, 2009. On May 20, 2009, the NYPD, after an unsuccessful attempt to reach plaintiff's counsel, submitted a briefing schedule for its proposed motion to dismiss the Complaint that was subsequently approved by Judge Dora Irizarry. That briefing schedule called for the motion to be fully briefed by June 26, 2009. On June 9, 2009, the action was reassigned to this Court. On June 26, 2009, the NYPD submitted its unopposed motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
In its motion, the NYPD argues that it is not a suable entity, and that any claim brought against it should therefore be dismissed. The authority for this proposition is traceable to the New York City Charter § 396 which states: "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." Wilson v. City of New York, 800 F.Supp. 1098, 1101 (E.D.N.Y. 1992). Courts have uniformly read this provision to conclude that "[t]he New York City Police Department is an organizational subdivision of the City of New York, lacking independent legal existence and as such is not a suable entity." Rossi v. New York City Police Dep't, No. 94 Civ. 5113 (JFK), 1998 WL 65999, at * 5 (S.D.N.Y. Feb. 17, 1998). See Jenkins v. City of New York, 478 F.3d 76, 93 n. 19 (2d Cir. 2007) (New York City Police Department is not a suable entity); Adams v. Galletta, 966 F.Supp. 116, 117 (E.D.N.Y. 1996) (New York City's Department of Correction is not a suable entity); Goode v. Winkler, No. 97 Civ. 8999 (SAS), 1999 WL 1067959, at *3 (S.D.N.Y. Nov. 23, 1999) (collecting cases); East Coast Novelty Co., Inc. v. City of New York, 781 F.Supp. 999 (S.D.N.Y. 1992) ("As an agency of the City, the Police Department is not a suable entity."). Therefore, all claims against the NYPD are dismissed.
It its motion, the NYPD also argues that the action should be dismissed as to the other defendants pursuant to the Court's authority under Fed. R. Civ. P. 4(m). Rule 4(m) states:
If a defendant is not served within 120 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Judge Orenstein's April 21, 2009 order provided notice to the plaintiff that without further action, the plaintiff risked the dismissal of the case for failure to prosecute. Such notice having been given, this Court dismisses the ...