The opinion of the court was delivered by: Pitman, United States Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD J. SULLIVAN, United States District Judge
By notice of motion dated September 9, 2009 (Docket Item 34) defendant New York City Department of Correction ("NYCDOC"), moves to dismiss the pro se plaintiff's complaint pursuant to Rules 4(m), 41(b), and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, I respectfully recommend that the motion be granted on consent with respect to the NYCDOC only and denied in all other respects.
A. Facts Underlying the Complaint
Plaintiff's claim arises from allegedly unsanitary conditions he was subjected to while in the custody of the NYCDOC and incarcerated at Rikers Island. On three occasions between December 3 and December 14, 2007, the toilet in plaintiff's cell overflowed and contaminated the cell with the products of elimination. The flooding was apparently the result of a problem in the drains that the NYCDOC was attempting to address; plaintiff was told a plumber had been called. It also appears that plaintiff and inmates from other affected cells were removed to other locations during the worst of the flooding. Plaintiff also alleges that after the flooding, he was not given appropriate equipment (an unspecified "mask" and gloves) to clean his cell. After plaintiff requested to be moved on December 14, 2007, he was relocated to another part of the prison and later moved to another facility. Plaintiff claims to have suffered severe headaches and dizziness as a result of the flooding.
Plaintiff's initial complaint named the NYCDOC, Correction Officers "Hernandezs," "Sweeten," and Harris, and two Jane Does as defendants (Complaint, dated Feb. 12, 2008 (Docket Item 2)). The United States Marshals served the NYCDOC on June 17, 2008, but its attempts to serve the individual defendants on that date were unsuccessful (Process Receipts, dated June 17, 2008 (Docket Items 3-5, 7)). The process receipts indicate that the Marshals were unable to serve "Hernandezs" or Harris because plaintiff had not provided a first name or shield number for these defendants (Docket Items 3, 5). The process receipt for "Sweeten" reads "[p]lease check spelling of name" (Docket Item 4).
On July 7, 2008, the Honorable Richard J. Sullivan, United States District Judge, ordered plaintiff to show good cause for failing to serve his complaint within 120 days of its filing (Order, dated July 7, 2008 (Docket Item 6)). Plaintiff responded on July 15, 2008, indicating that he needed assistance in identifying two of the defendants (Letter from plaintiff to the Honorable Richard J. Sullivan, dated July 15, 2008 (Docket Item 9)). Judge Sullivan found that plaintiff had shown good cause for failing to timely serve his complaint and directed the NYCDOC to provide plaintiff with defendants' names and addresses. Judge Sullivan further directed plaintiff to file an amended complaint no later than 30 days after receiving this identifying information and to then request a service package, fill out the required forms and provide the Marshals with the documents necessary to effectuate service (Order, dated August 25, 2008 (Docket Item 14)).
On October 14, 2008, Judge Sullivan directed plaintiff to file his amended complaint no later than November 14, 2008 (Order, dated October 14, 2008 (Docket Item 15)). On November 12, 2008, plaintiff filed an application to compel defendants to provide the names of the remaining John Doe defendants (Notice of Motion to Amended Complain[t], dated November 3, 2008 (Docket Item 16)). Judge Sullivan denied the motion but gave plaintiff yet another extension -- until December 8, 2008 -- to file an amended complaint, repeating his directions regarding service (Order, dated November 19, 2008 (Docket Item 17)). In an order dated December 1, 2008, Judge Sullivan again extended plaintiff's deadline to January 5, 2009 because plaintiff had been moved to another facility and again repeated his instructions regarding service (Order, dated Dec. 1, 2008 (Docket Item 18)). On January 8, 2009, Judge Sullivan issued an order stating that "[p]laintiff appears to have faithfully complied with the Court's December 1, 2008 Order," but found that the complaint submitted by plaintiff was insufficient because it did not contain allegations. Accordingly, Judge Sullivan ordered plaintiff to file a proper amended complaint no later than February 9, 2009 and once again repeated his direction regarding service (Order, dated January 8, 2009 (Docket Item 21)). The November 19, 2008, December 1, 2008 and January 8, 2009 Orders all warned plaintiff that failure to comply with the stated deadlines could result in dismissal of plaintiff's claims against the individual defendants. On February 5, 2009, plaintiff filed an amended complaint that added the first names, correctly spelled last names and badge numbers of all named defendants. The amended complaint also added a third Jane Doe Defendant (Amended Complaint, dated Feb. 2, 2009 (Docket Item 23)).
On April 23, 2009, I received a letter from plaintiff indicating that he had received the names of two Jane Doe defendants from the NYCDOC and that he wished to file a second amended complaint that added these new defendants (Letter from Plaintiff to Steven D. Webber, dated Mar. 11, 2009). On April 27, 2009, I issued an endorsed order granting plaintiff's application to file a second amended complaint (Endorsement, dated Apr. 27, 2009 (Docket Item 28)). On May 6, 2009, plaintiff filed a second amended complaint that added defendants Deputy Yolanda Canty and Captain Kelly Lester (Second Amended Complaint, dated May 2, 2009 (Docket Item 30)). On May 11, 2009, I amended my April 27, 2009 Order to direct plaintiff to serve and file his second amended complaint no later than June 30, 2009 (Amended Endorsement, dated May 11, 2009 (Docket Item 29)). According to the docket sheet, amended summonses were not issued for all defendants until October 23, 2009 and defendants Sweeting, Harris, Canty and Lester were served on November 12, 2009 (Process Receipts, dated Nov. 12, 2009 (Docket Items 42-45)). Defendant Hernandez was not served; she is on long term sick leave (Process Receipt, dated Nov. 12, 2009 (Docket Item 41)).
The NYCDOC argues that the complaint should be dismissed pursuant to Fed.R.Civ.P. 4(m) because plaintiff did not serve any of the defendants within 120 days of filing the second amended complaint or before the June 30, 2009 deadline set in my May 11, 2009 Order. The NYCDOC further argues that the complaint should be dismissed pursuant to Fed.R.Civ.P. 41(b) because plaintiff's failure to serve defendants violated my May 11, 2009 Order and other orders of the court. In addition, the NYCDOC argues that plaintiff's claims against them should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because the NYCDOC is not a suable entity and, even if plaintiff intended to name the City of New York as a defendant, he has not adequately alleged a municipal policy or practice. The NYCDOC also argues that even if the second amended complaint were deemed to assert a claim against the City of New York, deemed to allege that the constitutional violation occurred pursuant to a policy or practice, and the overflowing toilet in plaintiff's cell were assumed to create a sufficiently serious threat to plaintiff's health, the claim would still have to be dismissed because plaintiff has not alleged facts suggesting that the individual defendants were deliberately indifferent to the problem. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). Since plaintiff has not alleged facts sufficient to state a claim against the individual defendants, NYCDOC argues that it necessarily follows there can be no claim against the city of New York.
On September 19, 2009, plaintiff responded to the NYCDOC's motion stating that he "never received the form to serve the 2 Defendants with the Summons. I requested the Court [a] while back I wrote to the clerk for the form never received any" (Responses, dated Sept. 13, 2009 (Docket Items 32- 33*fn2 )). Plaintiff sent two additional letters, dated October 2 and 3, 2009, in which he states that he wrote to the Pro Se office requesting the forms to complete service on March 11, 2009 and August 3, 2009, and that "without the necessary forms plaintiff cannot proceed." He also states that he "concede[s] to the dissmissal [sic] against the Municipal Agency" (Letters from Plaintiff to the Honorable Henry B. Pitman, dated October 2 and 3, 2009). On October 22, 2009, I contacted the Pro Se Office and asked if it had any knowledge of plaintiff's March 11, 2009 and August 3, 2009 requests and the ...