Opinion
21-CV-4050 (KMK)
08-18-2021
ARIEL DAN BARKAI, Plaintiff, v. GEORGE MENDEZ; ALICE LaSCHETT; GLENN CUMMINGS; RAY McCALLUGH; JEFF WANNAMAKER; 4 OTHER JOHN DOE CLARKSTOWN POLICE OFFICERS; AND GEORGE HOEHMANN, CLARKSTOWN SUPERVISOR, Defendants.
ORDER OF SERVICE
KENNETH M. KARAS, United States District Judge
Plaintiff, appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. By order dated May 12, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP).
DISCUSSION
A. Service on Named Defendants
Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that summonses and the complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. If the complaint is not served within that time, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service); see also Murray v. Pataki, 378 Fed.Appx. 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals' failure to effect service automatically constitutes ‘good cause' for an extension of time within the meaning of Rule 4(m).”).
To allow Plaintiff to effect service on Defendants Clarkstown Supervisor George Hoehmann, Clarkstown Police Officer George Mendez, Sergeant Alice LaSchett, Lieutenant Glenn Cummings, Chief of Police Ray McCallugh, and Captain Jeff Wannamaker through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for each of these Defendants. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon the Defendants.
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.
B. John Doe Defendants
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the Clarkstown Police Department to identify the John Doe Clarkstown police officers who were dispatched to Plaintiff's location on April 28, 2020, as per Defendant LaSchett's direction. It is therefore ordered that the Clarktown Town Attorney, who is the attorney for and agent of the Clarkstown Police Department, must ascertain the identity and badge number of each John Doe whom Plaintiff seeks to sue here and the address where the defendant may be served. The Clarkstown Town Attorney must provide this information to Plaintiff and the Court within sixty days of the date of this order.
Within thirty days of receiving this information, Plaintiff must file an amended complaint naming the John Doe defendants. The amended complaint will replace, not supplement, the original complaint. An amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the addresses for the named John Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service.
CONCLUSION
The Clerk of Court is instructed to issue summonses, complete the USM-285 forms with the addresses for Defendants Clarkstown Supervisor George Hoehmann, Clarkstown Police Officer George Mendez, Sergeant Alice LaSchett, Lieutenant Glenn Cummings, Chief of Police Ray McCallugh, and Captain Jeff Wannamaker, and deliver all documents necessary to effect service to the U.S. Marshals Service.
The Clerk of Court is directed to mail a copy of this order and the complaint to the Clarkstown Town Attorney at: 10 Maple Avenue, New City, New York 10956.
An “Amended Complaint” form is attached to this order.
Plaintiff has consented to electronic service of notices and documents in this action. (ECF No. 3.) The Clerk of Court is directed to mail an information package to Plaintiff.
SO ORDERED.